UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


ELEMENTS 

THE    LAW    OF    TORTS 


FOR     THE 


USE     OF     STUDENTS 


BY 

MELVILLE  M.  BIGELOW,  Ph.D. 

LECTUKEK    IN    THE    SCHOOL    OF    LAW,   BOSTOX    UNIVEKSITT 


SECOND     EDITION 


BOSTON 
LITTLE,   BROWN,   AND   C0:MPANY 

1882 


Entered  according  to  Act  of  Congress,  in  the  year  1878,  by 

MELVILLE    M.    BIGELOW, 

It  tlie  office  of  the  Librarian  of  Congress,  at  Washington. 


Entered  according  to  Act  of  Congress,  in  the  year  1882,  by 

MELVILLE    M.    BIGELOW, 

In  the  offl.ce  of  the  Librarian  of  Congress,  at  Washington 


University  Press; 
John  Wilson  and  Son,  Cambridge. 


PREFACE. 


The  purpose  of  this  little  book  is  to  answer  the 
question,  What  constitutes  a  tort?  It  has  nothing, 
primarily,  to  do  with  questions  relating  to  the  enforce- 
ment of  the  law  for  the  commission  of  an  admitted 
tort ;  that  is,  with  questions  of  procedure.  The  law 
of  procedure  constitutes  a  distinct  head,  and,  taken 
comprehensively,  so  as  to  include  all  branches  of  civil 
redress,  will  form  the  subject  of  a  separate  treatise 
in  the  series  for  law  students  begun  by  the  present 
work. 

It  would  be  impossible,  however,  to  present  the 
substantive  law  of  torts  in  any  useful  manner  with- 
out more  or  less  reference  to  the  adjective  law  (as 
Bentham  and  Austin  have  fitly  termed  the  law  of 
procedure)  ;  and  wherever  it  has  been  deemed  neces- 
sary to  state  any  of  the  principles  relating  to  pro- 
cedure, in  order  to  the  better  understanding  of  the 
subject  in  hand,  the  author  has  acted  accordingly. 

The  whole  law  of  torts  might,  indeed,  be  studied 
with  profit  from  the  stand-point  of  procedure  ;  and  it 
has  generally  been  thus  studied.  The  objection  to 
this  method  is,  that  it  emphasizes  that  which  is  acci- 
dental and  shifting  over  that  which  is  real  and  per- 
manent.    The  chief  principles  of  the  English  law  of 


iv  PREFACE. 

torts  prevail  in  all  civilized  countries,  while  each  State 
has  its  own  mode  of  enforcing  the  law  ;  and  the  study 
of  the  common-law  system  of  pleading,  though  a  mat- 
ter of  the  highest  importance,  is  the  study  of  rules 
that  to-day  are  largely  mere  matter  of  history. 

For  purposes  of  historical  investigation  the  study 
of  the  law  of  torts,  from  the  stand-point  of  the  com- 
mon-law system  of  pleading  has  advantages  over  all 
other  methods.  Indeed,  the  substantive  law  of  torts 
has  been  moulded  into  its  present  form  by  the  appli- 
cation of  doctrines  of  pleading  to  the  question  of 
agitated  rights  almost  more  than  by  the  validity  or 
justness  of  the  rights  themselves.  But  a  series  of 
duties  growing  out  of  the  contentions  of  litigants, 
and  modified  by  the  adjective  law,  has  long  since 
become  established;  and  these  duties  may  now  be 
brought  together  and  treated  as  a  permanent  embodi- 
ment of  the  substantive  law,  —  permanent  at  least  in 
their  main  features. 

To  present  these  duties  properly  is  to  answer  the 
question.  What  constitutes  a  tort  ?  And,  unless  the 
method  suggested  by  pleading  be  adopted,  it  is  appre- 
hended that  this  is  the  only  useful  way  to  present  the 
law.  Unlike  contracts,  torts  spring,  not  from  a  com- 
mon centre,  but  from  a  series  of  different  centres. 
Almost  every  contract  runs  back  at  the  last  analysis 
to  a  common  definition,  applicable  to  all  contracts ; 
l)nt  this  cannot  be  said  of  every  tort.  The  elements 
which  enter  into  the  constitution  of  an  action  for 
slander  cannot  be  made  to  coincide  with  those  which 
belong  to  an  action  for  a  conversion  or  for  a  mali- 
cious prosecution  or  for  damage  caused  by  negligence. 
Each  one  of  these  topics  has  its  own  peculiar  rules  of 


PREFACE.  V 

law,  making  it  a  distinct  head  ;  and  the  same  is  true 
of  all  other  branches  of  tlie  general  subject.  The 
onl}'  connecting  link  binding  the  whole  chain  of  torts 
is  probably  to  be  found  in  a  theory  of  intention;  that 
is,  of  liability  for  that  which  has  been  actually  or  pre- 
sumably intended. 

There  is,  then,  no  such  thing  as  a  typical  tort ;  and, 
in  seeking  to  determine  what  constitutes  a  tort,  it 
must  be  understood  that  the  question  can  be  an- 
swered only  with  reference  to  a  particular  branch 
of  the  general  subject  embraced  under  the  title  of 
Torts. 

Acting  upon  this  fact,  the  author  has  endeavored 
to  point  out  the  elements  entering  into  the  legal  con- 
ception of  each  of  the  various  classes  of  torts  ;  arrang- 
ing the  classes  according  to  their  natural  affinities,  as 
evidenced  by  some  general,  characteristic  feature.  In 
certain  branches  of  torts  it  is  found  that  an  evil  mo- 
tive is  a  common  legal  element ;  in  certain  others, 
careless  conduct  is  a  general  legal  characteristic ; 
while  between  these  extremes  lies  an  extensive  class 
of  cases,  in  which  for  the  most  part  liability  is  made 
to  depend  upon  the  doing  or  omitting  to  do  an  act, 
regardless  of  the  party's  state  of  mind  or  conduct. 
In  the  present  work,  as  in  the  author's  Leading  Cases 
on  Torts,  the  arrangement  of  the  several  classes  of 
torts  is  based  upon  the  suggestion  of  these  facts. 
Another  division,  based  upon  a  generalization  of  the 
duties  themselves,  as  determined  by  the  situation  of 
the  parties  to  the  action,  and  of  some  value  for  the 
purpose  of  definition,  is  given  in  the  Introduction.^ 

1  With  these  divisions,  compare  7  Am.  Law  Rev.  652,  "  The  Theory 
of  Torts,"  an  article  suggesting  this  classification. 


Vi  PREFACE. 

It  is  deemed  proper  to  say  that  tlie  authorities 
cited  through  the  book  are  cited  not  merely  because 
they  are  judicial  decisions,  but  also  because  they  will 
be  found  profitable  for  instruction.  The  author  has 
studiously  avoided  citing  a  multitude  of  cases,  and 
has  referred  to  such  only  as  may  be  examined  by  the 
student  with  profit;  not  that  other  equally  good  cases 
may  not  often  be  found,  but  that  those  cited  were 
deemed  sufficient  both  in  number  and  quality  for  the 
object  sought  to  be  obtained  by  this  work.  Upon 
questions  of  conflict  of  authority,  this  plan  has  been 
somewhat  departed  from,  and  many  cases  have  been 
cited  which  otherwise  would  have  been  omitted. 

Boston,  May  1,  1878. 


NOTE   TO   THE   SECOND   EDITION. 

The  first  edition  of  this  work  has  been  subjected  to 
thorough  examination,  the  result  of  wliich  is  that 
only  slight  changes  have  been  found  needful.  A  few 
cases  have  been  added. 

Boston,  Oct.  1,  1882. 


CONTENTS. 


PAGE 

Cases  Cited xiii 

Introduction 3 


I.  DUTIES  OF  INDIVIDUALS  INTER  SE. 

CHAPTER    I. 

Deceit 9 

§  1.  Introductory 9 

§  2.  Of  the  Representation 10 

§  3.  Of  the  Defendant's  Knowledge  of  the  Falsity  of 

his  Representation;  that  is,  of  the  5c/e/?^er  .  .  18 
§  4.  Of  the  Ignorance  of  the  Plaintiff,  and  his  Belief  in 

the  Truth  of  the  Representation 23 

§  5.  Of  the  Intention  that  the  Representation  should 

be  acted  upon 30 

§  6.  Of  Acting  upon  the  Representation 32 

§  7.  Of  Slander  of  Title  and  Trade-Marks 33 

CHAPTER   n. 

St.ander  and  Libel 38 

§  1.  Introductory 38 

§  2.  Of  the  Interpretation  of  Language 39 

§  3.  Of  the  Publication  of    Defamation   and    Special 

Damage 40 

§  4.  Of  the  Imputation  of  having  Committed  an  Indict- 
able Offence 42 


Vlll  CONTENTS. 

PAGE 

§  5.  Of  the  Imputation  of  having  a  Contagious  or  In- 
fectious Disease  of  a  Disgraceful  Kind     ...  45 

§  6.  Of  an  Imputation  affecting  the  Plaintiff  in   his 

Office,  Business,  or  Occupation 46 

§  7.  Of  an  Imputation  tending  to  Disinherit  the  Plain- 
tiff       48 

§  8.  Of  an  Imputation  conveyed  by  Writing,  Printing, 

or  Representation;  that  is,  of  Libel      ....  49 

§  9.  Of  the  Truth  of  the  Charge 50 

§  10.  Of  Malice  and  Privileged  Communications      .     .  51 

CHAPTER  III. 

Malicious  Prosecution 70 

§  1.  Introductory 70 

§  2.  Of  the  Termination  of  the  Prosecution    ....  72 

§  3.  Of  the  Want  of  Probable  Cause 77 

§  4.  Of  Malice 86 

§  5.  Of  Damage 87 

§  6.  Of  Analogous  Remedies 88 

CHAPTER  IV. 

Conspiracy 91 

§  1.  Introductory 91 

§  2.  Of  Participation  in  the  Conspiracy 93 

§  3.  Of  the  Termination  of  the  Prosecution     ....  95 

§  4.  Of  the  Want  of  Probable  Cause 96 

§  5.  Of  Malice 96 

§  6.  Of  Damage 96 

CHAPTER  V. 

Assault  and  Battery 98 

§  1.  Introductory 98 

§  2.  Of  Assaults 98 

§  3.  Of  Batteries 101 

§  4.  Of  Son  Assault  demesne 105 

§  5.  Of  Violence  to  or  towards  One's  Servants  or  Assis- 
tants    108 


CONTENTS.  IX 


CHAPTER  VI. 

PAGB 

False  Impeisoxment 113 

§  1.  Introductory 113 

§  2.  Of  the  Nature  of  the  Restraint 113 

§  3.  Of  Arrests  with  Warrant 115 

§  4.  Of  Arrests  without  Warrant 132 


CHAPTER  Vn. 

Enticement  and  Seduction 139 

§  1.  Introductory 139 

§  2.  Of  Master  and  Servant  ex  Contractu 140 

§  3.  Of  Master  and  Servant  ex  Gratia 143 

§  4.  Of  Parent  and  Child 144 

§  5.  Of  Guardian  and  Ward 152 

§  6.  Of  Husband  and  Wife 153 

CHAPTER   Vin. 

Tkespasses  upon  Property 160 

§  1.  Introductory 160 

§  2.  Of  Possession 160 

§  3.  Of  What  constitutes  Trespass  to  Property    .     .     .  174 

CHAPTER  IX. 

Conversion 184 

§  1.  Introductory 184 

§  2.  Of  Possession 185 

§  3.  Of  What  constitutes  Conversion 189 

CHAPTER  X. 

Infringement  of  Patents  and  Copyrights     .    .    .  205 

§  1.  Introductory 205 

§  2.  Of  What  constitutes  Infringement  of  Patent     .     .  205 

§  3.  Of  What  constitutes  Infringement  of  Copyright    .  213 


CONTENTS. 


CHAPTER  XI. 

PAGE 
VIOLATION   OF   RiGHTS   OF    SUPPORT 220 

§  1.  Introductory 220 

§  2.  Of  Lateral  Support 220 

§  3.  Of  Subjacent  Support 227 


CHAPTER  Xn. 

Violation  of  Water  Rights 230 

§  1.  Introductory 230 

§  2.  Of  Usufruct  and  Reasonable  Use  of  Streams     .     .  230 

§  3.  Of  Sub-sui-face  Water 234 

§  4.  Of  PoUution  of  Stream 235 

CHAPTER  XIII. 

Nuisance 237 

§  1.  Introductory 237 

§  2.  Of  What  constitutes  a  Nuisance 237 

CHAPTER  XIV. 

Damage  by  Animals 248 

§  1.  Introductory 248 

§  2.  Of  Notice  of  Propensity  to  do  Damage     ....  248 

§  3.  Of  Escape  of  Animals 251 

CHAPTER  XV. 

Escape  of  Dangerous  Elements  or  Substances     .  252 

§  1.  Introductory 252 

§  2.  Of  the  Nature  of  the  Protection  Required    .     .     .  252 

CHAPTER   XVI. 

Negligence 260 

§  1.  Introductory 260 

§  2.  Of  Innkeeper  and  Guest 263 

§  3.  Of  Bailor  and  Bailee 265 


CONTENTS.  XI 

PAGE 

§  4.  Of  Professional  Services 271 

§  5.  Of  Telegraph  Companies 275 

§  6.  Of  the   Liability  of  Agents,  Servants,  Trustees, 

Officers,  and  the  Like,  to  their  Superiors  .     .     .  277 

§  7.  Of  the  Use  of  Premises 288 

§  8.  Of  Constructive  Notice 305 

§  9.  Of  Contributory  Negligence 306 


11.   SPECIAL  DUTIES. 

CHAPTER   XVII. 

Special  Non-Contractual  .Duties 323 

Public  Officers 323 

Innkeepers 323 

Common  Carriers 324 

Waste 324 

CHAPTER  XVIIL 

Contractual  Duties 325 

Deceit  in  Sales 325 

Innkeeper  and  Guest 325 

Common  Carriers  of  Passengers 325 

Common  Carriers  of  Goods 325 

Other  Bailees 326 

Other  Contractors 326 


STUDIES  IN  PLEADING 329 


INDEX 339 


CASES    CITED. 


PAGE 

Abrahams  v.  Kidney  .     .  147,  148 

Absor  V.  French      ....     178 

Adams  v.  Emerson  ....     1(38 

V.  Lisber     ...     78,  79 

V.  Rivers     ....     180 

Adler  v.  Fenton 97 

Agnew  V.  Johnson  ....  204 
Albro  V.  Agawani  Canal  Co.  804 
V.  Jaquith  ....  300 
Aldred  v.  Constable  .  .  .  190 
Allen  V.  Crofoot      ....     181 

V.  Wright 138 

Alton  V.  Midland  Railway  111,  314 
Amick  V.  O'Hara    ....     188 

Amory  v.  Flyn 182 

Anderson  v.  Hill  ....  14 
Andre  v.  Johnson  ....  105 
Andres  v.  Koppenheaver  .  43 
Andrews  v.  Morris  ....  124 
Armistead  v.  Wilde  .  .  .  2'i4 
Armory  v.  Delamirie  .  .  .  187 
Armstrong     v.     Lancashire 

Hallway  Co 817,  819 

Arthur  v.  Gayle  ....  203 
Arundel]  v.  White  ....       74 

Ashby  0.  White 286 

Aston  V.  Blagrave  ....  48 
Atkinson  v.  Matteson  .  .  120,  121 
Austin  V.  Barrows  ....       97 

Ayer  v.  Bartlett 166 

Ay  re  v.  Craven  ....     45,  47 


B. 


Bacon  v.  Markley    . 

.     .     .       29 

V.  Sheppard 

.     .     .     173 

V.  Towne 

.     .     75,  81 

Bagelcy  v.  Forder  . 

.     .     151 

Bailey  v.  Colby  .     . 

. 194,  195 

V.  Kalamazoo  Pub.  Co.   62 


Baird  v.  Williamson 
Baich  V.  Smith   .     . 
Balston  v.  Benstcd . 
Bamford  v.  Turnley 
Barber  v.  Armstead 
Barker  v.  Braham  . 
Barnes  «  Allen  .     . 
I'.  Ward  .     . 
Barnett  v.  Guildford 
V.  Stanton  . 
Barnstable  v.  Thacher 
Barratt  v.  Price  .     . 
Barrett  v.  Warren 
Barron  v.  Mason 
Bartle}*i'.  Richtmeyer 
Barton  u.  Burton     . 
Bartonshill  Coal  Co 
Guire      .... 


PAGE 

253,  254 
.  294 
.     234 

239,  240 
.  157 
.  129 
.  166 
.  290 
.  172 
.  19 
.  163 
.  110 
.  202 
.  87 
.  152 
203 


Mc- 


V.  Reid 


302 
301, 
302 
Bassett  v.  Salisbury  Manuf. 

Co 235 

Batson  v.  Donovan  .  .  .  268 
Baum  V.  Clause  ....  44,  51 
Baxter  v.  Tajdor  ....  165 
Baynes  v.  Brewster  .  .  136,  137 
Beach  ?;.  Hancock  ....  100 
Beal  V.  Robeson  ....  85 
V.  South  Devon  Rail- 
way Co.  .  .  .  266,  269 
Beattie  v.  Ebury  ....  22 
Beaulieu  v.  Portland  ...     302 

Beck  V.  Stitzel 44 

Beckwith  v.  Philby  .  .  .  135 
Bedford  v.  Bagsliaw  ...  15 
Bellamy  v.  Burch  ....  48 
Bellefontaine  &  I.  R.  Co.  v. 

Snyder 320 

Bennett  v.  Allcott  ....  110 
V.  Bullock ....  170 
V.  Judson  ....  22 
V.  Smith    ....     154 


XIV 


CASES   CITED. 


PAGE 

Berkshire    Woollen    Co 

V 

Proctor 

.     264 

Besebe  v.  Matthews     . 

72,  73 

Bicknell  v.  Dorion  .     . 

.      71 

Bird  V.  Holbrook    .    105, 

289,  308 

V.  Jones      .     .     . 

.     ]15 

Birdsey  v.  Butterfield 

.      16 

Bisliop  V.  Small.     .     . 

.      14 

Blackliam  v.  Pugh  .     . 

.      66 

Blake  v.  Barnard    .     . 

.     100 

V.  Lanyon     .     . 

112,  141 

Blanchard  v.  Beers 

.    207 

Bliss  V.  Hall  .... 

.     240 

Bloxam  v.  Hubbard     . 

.     201 

Blyth  V.  Tophani     .     , 

.     291 

Bodwell  V.  Osgood .     . 

«9 

Bonomi  v.  Backhouse 

.    220 

Booraem  v.  Crane  .     . 

.     200 

Boorman  v.  Brown .     . 

.     263 

Botsford  V.  Wilson 

.       28 

Bostick  V.  Rutherford 

.       81 

Bosworth  V.  Swansea  . 

.     309 

Bowditcli  V.  Balchin    . 

.     136 

Boyd  V.  Cross     .     .   77,  i 

B5,  86,  87 

Boyle  V.  Brandon    .     . 

.     148 

Bovill  V.  Pimm   .     .     . 

,.     209 

Bradley  v.  Fisher   .     . 

.     286 

V.  Fuller    .     . 

32,  33 

V.  Poole     .     . 

.      15 

Bradt  v.  Towsley   .     . 

.      41 

Brady  v.  Wliitney  .     . 

.     198 

Bramwell  v.  Halcomb 

.    215 

Brannock  v.  Bouldin   . 

.      95 

Braveboy  v.  Cockfield 

.      89 

Breese  v.  United  States  ^ 

rei. 

Co 

.    .    276 

Brewer  v.  Boston  Theatr 

e   .     284 

Bridge  v.  Grand  June,  h 

ail- 

way  Co 

.     310 

Bridges  v.  Hawkesworth 

.     189 

Briggs  V.  Taylor     .   266, 

268,  269 

Brinsmead  v.  Harrison 

.    .     198 

Broail  V.  Ham     .     .     . 

.      80 

Broadbent  v.  Ramsbottoi 

11  .     284 

Brockway  v.  Crawford 

.     .     135 

Bromage  v.  Prosser     . 

.       67 

Bromley  v.  Wallace    . 

154,  158 

Brooker  v.  Coffin    .     . 

.     .       43 

Brooks  V.  Curtis      .     . 

.    226 

V.  Hamilton     . 

.     .      22 

Brown  v.  CarjX'Uter    . 

.     .     183 

V.  Cliadsey  .     . 

.     .     131 

V.  Collins     .     . 

.     .     241 

Co 


PAGK 
183 

104 

25 
317 
28(3 
114 
277 
108 


Brown  v.  Hoburger 

V.  Kendall    .     . 

V.  Leacli  .     .     . 

i".  iVloGregor  . 
Browning  l:  Hanford  . 
Brushaber  ?•.  Stegeman 
Bryant  r.  American  Tel. 
Buck  i:  Atkin  .  .  . 
V.  .McCaughtry  . 
Buckley  v.  Gross  .  .  .  164, 187 
Burhams  ?•.  Sanford  ...  63 
Burke  v.  Brooklyn  R.  Co.  .  320 
Burrows  v.  March  Gas  Co.  .     315 

Burt  V.  Place 79,  81 

Busst  i\  Gibson 78 

Butterfield  c.  Forrester    .     .     310 
Byam  v.  Farr 209 


C. 


Calder  v.  Halkett  ....  126 
Callahan  v.  Bean  ....  319 
Calloway  v.  Bleaden  ...  206 
Cambridge  Bank  v.  Delano .  305 
Campbell  v.  Fleming  ...  15 
?.'.  Spottiswoode  51,  61 
Cannon  V.  Hatcher.     .     .     .     166 

Card  V.  Case 248 

Cardival  v.  Smith  .  .  72,  74,  75 
Carey  v.  Ledbitter  ....  239 
Carleton  v.  Franconia  Iron 

Co 295,296,298 

Carpenter  v.  Hale  ....     197 
V.  Tarrant  ...      44 

Carr  i'.  Hood 57 

Carratt  v.  Morley  .  .  .  125,  128 
Carroll  v.  Staten  Island  E. 

Co 309 

Carslake  v.  Mapledoram      .       45 

Carstairs  v.  Taylor      .     .     .     254 

Carter  V.  Kinsman.     .     .186,191 

V.  Towne      ....     312 

Case  V.  Bougliton  ....       18 

V.  De  (iocs      .     .     .  172,  173 

V.  Slupherd    .     .     .161,  174 

Cashill  V.  Wright    ....     264 

Cass  V.  Boston  &  L.  R.  Co.  .   266, 

268 

Cecil  V.  Spurger      ....      12 

Chambers  v.  Bedell     ...     178 

V.  CauHield      .     .     157 

r.  l')onaldson   .     .     162 

Chambersburg  Assoc.  Appeal  282 


CASES  CITED. 


XV 


Co. 


Chapman  v.  Dyett .  . 
V.  Erie  H.  Co 
V.  New  York  & 

H.  R.  Co 
V.  Rothwell 
Charles  v.  Rankin  . 
Chase  v.  Silverstone 
Chasemore  v.  Ricliards 
Chatfield  v.  Wilson 
Chauntler  v.  Robinson 
Ciieesnian  v.  Exail . 
Chenowith  v.  Dickinson 
Chicago,  &c.  R.  Co. 
Patten    .... 
Cincinnati    Gazette 
Timberlake     .     . 
Citizens'  Bank  v.  First 

tional  Bank    . 
Clark  V.  Cleveland 
V.  Rideout 
V.  Wilson  .     . 
Cleveland,  &c.  R.  Co.  v 
ClufE   V.  Mutual  Ben 

Ins.  Co 

Clinton  v.  Myers     . 

Clothier  v.  Webster 

Codrington  v.  Lloyd 

Coggs  V.  Bernard    . 

Cohen  v.  Frost   .     . 

Cole  V.  Curtis      .     . 

V.  Maundy  .     . 

V.  Stewart  .     . 

V.  Turner    .     . 

Coleman  v.  New  York 

H.  R.  Co.    .     .     . 
Collen  V.  Wright     . 
CoUett  V.  Foster 
Collins  V.  Denison  . 

V.  Evans 
Collis  V.  Selden  .     . 
Columbus  Gas  Co.  ; 

land 

Connolly  v.  Boston 
Cook  V.  Howard 
Coolidge  V.  Brigham 
Coombs     V.    New 

Cordage  Co.   .     . 

Cooper  V.  Greeley  . 

V.  Harding  . 

V.  Lovering 

V.  Utterbaek 

Coote  V.  Lighworth 

Corby  v.  Hill      .    . 


PAGE 
.       131 

.     303 
N. 

317,  318 
,  296 
.  223 
.    235 

234,  235 
.  230 
.  225 
.  187 
268 


A'^an 


312 


Na- 


.      16 

.     121 

186,  191 

.     191 


Terry 
Life 


517 


.  .  106 

.  .  232 

.  .  285 

.  .  129 
.  265,  266 

.  .  264 

.  .  84 

.  .  177 

.  .  166 

.  .  101 


&  N. 
.  .  317 
.  .  19 
.  .  129 
.  .  31 
.  .  18 
.  298,  314 
Free- 
.  .  242 
.  .  309 
.  163,  164 
.  .  11 
Bedford 

300,  301 

50 

128 

14 

83 

117 

293 


PAGE 

Corey  v.  Bath 809 

Cotterell  v.  Jones  ....  97 
Coughtry  v.  Globe  Woollen 

Co 314 

Coulter  V.   American    Exp. 

Co 311 

Coupal  V.  Ward 129 

Coward  v.  Baddeley    .     .     .  104 

Cox  V.  Burbridge    ....  249 

V.  Cook 310 

Craig  V.  Hobbs 29 

Cripps  V.  Durdin     ....  132 

Crooker  v.  Bragg    ....  281 

Crump  V.  Lambert .  .  .  242,  243 
Cumberland     Coal     Co.    v. 

Sherman 288 

Curtis  V.  Ayrault    ....  234 

Cutts  V.  Spring 161 


D. 


173 
203 

219 
148 


Dabney  r.  Manning  . 
Dain  r.  Coning  .  .  . 
D'Almaine  v.  Boosey  . 
Damon  v.  Moore  .  . 
Danville,  &c.  Tump.  Co 

Stewart 

David  V.  Park  .  .  . 
Davies  v.  Jenkins   .     . 

V.  Mann  .     .  307,  308,  310 
Davis  V.  Detroit  &  M.  R.  Co.   302. 
303 

V.  Getchell     . 

V.  Reeves 

i\  Russell 
Davison  v.  Duncan 
Dawkins  v.  Paulct  . 
Dawson  v.  Chaniney 
Dean  v.  Keate     .     . 

V.  Peel  .     .     . 
De  Crespigny  v.  Wellesley 
Delano  v.  Curtis      .     .     . 
Delegal  v.  Highley      .     . 
Demick  v.  Chapman  .     . 
Den  d.  Stewart  v.  Johnson 
Dewey  ?•.  Osborn    .     .     .  171,  172 

Dews'i;.  Riley 125 

Deyo  F.  Van  Valkenburgh      113, 
122,  123,  130,  131 

Dezell  V.  Odell 197 

Dickinson  v.  Grand  Junction 

Canal  Co.      .    236 
V.  Worcester   .  241,  256 


317 

26 

129 


.  .  2.32 
.  06,  67 
.  .  185 
.  .  59 
.  .  65 
.  .  264 
. 261,  269 
.  .  145 

69 
198 

79 
163 

94 


XVI 


CASES  CITED. 


Dietz  V.  Langfitt     .    . 
Billing  V.  Murray  .     . 
Dixon  V.  Bell      .     .     . 

PAGE 

.      86 
.     230 
.     262 

Dodd  V.  Holme  .     .     .     . 

222,  223 

Dodson  V.  Meek      .     . 

.     182 

Dodwell  V.  Burford     . 

.     102 

Donald  v.  Suckling 

.     194 

Donaldson  v.  Haldane 

.    273 

Donovan  v.  Donovan  . 

.      13 

Doorman  v.  Jenkins    . 

.    267 

Dougherty  v.  Stepp     . 
Doupe  V.  Genin  .     .     . 
Dowling  V.  Hemmings 
Doyle  V.  Kussell      .     . 
Driggs  V.  Burton     .     . 

.     174 

.     254 
.     226 
.     121 

77,86 

])uff  V.  Budd      .     .     . 

.    268 

Dunham  v.  Powers 

.     .       54 

Dunlop  V.  Knapp    ,     . 
Dunn  V.  Hall      .     .     . 

.    286 
.      50 

Dimston  v.  Paterson    . 

.     .     117 

E. 


Eager  v.  Grirawood     .     .     .     147 

Eaton  V.  Boston  &  L.  E.  Co.   315, 

316 

Electric  Tel.  Co.  v.  Brett     .    208 

Elliott  V.  Eitchburg  R.  Co.    230, 

231,  232 

V.  Pray  ....  292,  297 

Ellis  V.  American  Tel.  Co.      276, 

277 

V.  Andrews     ...     14,  15 

V.  Loftus  Iron  Co.   .     .    251 

Elwood  V.   Western   Union 

Tel.  Co 277 

Ely  V.  Ehle 203 

V.  Stewart 25 

Embrey  v.  Owen  ....  230 
Emerson  v.  Davies  214,  216,  217 
Eno  V.  Del  Vecchio  .  .  .  226 
Evans  v.  Edmonds  ....  22 
V.  Walton     .    .      143,  146 


F. 

Fairmount  Railway  Co.  v. 

Stutler 111,314 

Faribault  v.  Sater    ....       22 

Farnswortli  v.  Garrard    .     .     269 

V.  Storrs  ...      56 


PAGH 

Farrand  v.  Marshall    .    .    .  221 

Farrant  v.  Barnes  ....  285 

Farrar  v.  Beswick  ....  203 
Farwell  v.  Boston  &  W.  R. 

Co 300,  302,  304 

Feital  i'.  Middlesex  R.  Co.  .  310 

Feltham  v.  England  ...  304 
Filer  v.  New  York  Cent.  R. 

Co 311 

Filbert  v.  Hoff 169 

Fiquet  v.  Allison  ....  204 
First  Baptist  Church  v.  Utica 

&  S.  R.  Co 243 

Fisher  v.  Bristow    ....  72 

V.  Thirkell  ....  292 

Fletcher  v.  Kylands    .     .     •  253 

Flint  V.  Pike 57 

Foley  V.  Wyeth 221 

Folsom  w.  Marsh     .     .     .215,216 

Ford  V.  Fitchburg  R.  Co.      .  302 

Forde  v.-  Skinner     ....  101 

Foss  V.  Hildreth       ....  50 

V.  Essex  Bank      .     .     .  267 

Fouldy  V.  Willoughby     .     .  200 

Francis  v.  Schoeltkoff      .     .  244 

Frazier  v.  Brown     ....  235 

Freede  v.  Anderson     .     .     .  202 

Freeman  v.  Venner     ...  32 

Freer  v.  Cameron    ....  296 

Frierson  v.  Hewitt ....  88 

Frisbie  v.  Fowler    ....  43 

Fryer  v.  Kinnersley     ...  67 

Fuller  t'.  Fenner      ....  41 

G. 

Gainsford  ?\  Blackford  .  .  16 
Galena,  &c.   R.  Co.  v.  Yar- 

wood .311 

Gallwey  v.  Marsliall  ...  4(5 
Galvin  z'.  Bacon  .  .  .  .179,202 
Gannon  v.  Ilargadon  234,  241,  256 

Garr  v.  Selden 54 

Gassett  v.  Gilbert    ....  (iA 

Gentry  v.  Madden  ....  196 

George  v.  Johnson  ....  28 
Gerrish     v.     New     Market 

Manuf.  Co 230 

Giblin  v.  McMulIcn      .     .  266,  267 

Gill  V.  Middleton     ....  275 

Gillham  v.  Madison  R.  Co.  .  256 
Gilman  v.  Eastern  R.  Co.  302,  304 

V.  Hill 190 


CASES  CITED. 


xvu 


Gillshannon  v.  Stony  Brook 

R.  Co 304 

Gllinore  v.  Newton  ....     201 
Glassey  v.  Hestonville  Rail- 
way Co 321 


Godbohl  V.  Branch  Bank 
Godefroy  v.  Dalton 
Goodenow  v.  Tappan  . 
Goodyear  v.  Railroad  . 
Gordon  v.  Harper  .  . 
Gorham  Co.  v.  White  . 
Gott  V.  Pulsiter  .  .  . 
Graham  v.  Noble  .  . 
Grainger  v.  Hill  .  .  . 
Gray  v.  Durhind  .  . 
V.  James  .  .  . 
V.  Russell  .  .  . 
Green  v.  Button  .  .  . 
r.  Elgie  .  .  . 
Greenland  v.  Chaplin  . 
Gregg  V.  Wynian  .  . 
Gregory  v.  Brunswick 

V.  Hill  .     .     . 

i\  Piper     .     . 
Griffin  v.  Cimbb . 


284 
273 
54 
212 
185 
210 


90. 


81 
114 
.  .  150 
.  .  208 
.217,218 
.  71,  78 
120 
308 
310 
94 
107 
175 
86,87 


Grigsby  v.  Clear  Lake  Water 

Co 244 

Grill  1-.  General  Colliery  Co.  2GG 

Griswold  v.  Sedgwick      .     .  118 

H. 


"Dnmnn    . 

197 

24 

Hagee  v.  Grossman 

Hall  V. 

Corcoran 

310 

V. 

Fearnley 

103 

Halley 

V.  Stanton    . 

44 

Halls  V. 

Thompson  . 

.      13,  24 

Hamilton  v.  Boston 

310 

V.  Eno 

02 

Hampt 

on  V.  Brown 

.164 

,180 

Hanson 

V.  McCue    . 

235 

Hardcastle   v.   South 

York- 

shire 

Railway  Co. 

291 

Hardy 

V.  Wlieeler  . 

201 

Miller     .     . 

66 

Harper 

V.  Indianapoli 

s,  &c. 

E.  Co 

303 
144 

V.  Suffkin   .  • 

Harris 

V.  Saunders . 

.     , 

191 

l(i4 

Harrison  v.  Bush    . 

H8 

Hart  V. 

Aldridge     . 

.     . 

140 

Hart  V.  Frame  .  . 
Hartley  v.  Cummings 
Harvey  v.  Watson . 
Hastings  v.  Lusk  . 
Hatch  V.  Lane  .  . 
Hawkins  v.  Hawkins 
Hay  V.  Cohoes  Co.  . 
Haj'craft  v.  Creasy 
Ha3'es  v.  Porter  .     . 

I'.  Waldron  . 

V.  Western  R.  Co. 
Haynes  v.  Leland    . 
Hays  V.  Younglove 
Heckert's  Appeal     . 
Hedges  v.  Tagg  . 
Heermance  v.  James 
Hemplnll's  Estate   . 
Henderson  v.  Broomhead 
Henley  v.  Lyme  Regis 
Hibbard  v.  Thompson 
Hickman  v.  Griffin 
Hill  V.  Yates  .     . 
Hilliard  v.  Richardson 
Hilton  V.  Granville 
Hinton  v.  Dibdin 
Hodges  V.  N.  E.  Screw  Co. 
Hogan  V.  Cregan 
Hogg  V.  Ward     .     . 
Holbrook  v.  Connor 
Hole  V.  Barlow   .     . 
Holland  v.  Anderson 
HoUey  v.  Mix 
Holly  V.  Boston  Gas  Co. 
Holmes ;;.  North-eastern 

way  Co 

Hooper  v.  Lane  .     .     . 

V.  Truscott 
Hopkins  v.  Crowe  .     . 
Hopper  V.  Reeve     .     . 
Houck  V.  Wachter  .     . 
Houlden  v.  Smith   .     . 
Hounsell  v.  Smith  .     . 
Houser  v.  Tully .     .     . 
How  land  v.  Vincent    . 
Hubbard  v.  Lyman 
Huff  V.  Bennett .     .     . 
Humphreys  v.  Stanficld 
Humphries  v.  Brogden 
Hunlett  V.  Swift      .     . 
Hunting  v.  Russell .     . 
Hutcheson  v.  Peck .     . 
Hutchins  v.  Hutchins  . 
Hyde  v.  Noble    .    .   179 
b 


PAGE 

271,  272 
.  142 
.  157 
52,53 
62,67 
.   29 


,  257 

,  18 

,  286 

,  232 

,  304 

,  69 

,  89 

,  279 

,  145 

.  153 

.  283 

.  54 

,  285 

.  275 
78,  79 

,  135 

.  305 

.  220 

.  266 

.  314 

.  148 

.  135 

.  15 

.  238 

.  26 

118, 180 

.  319 
Rail- 

.  298 

.  119 

.  52 

.  131 

.  102 

.  246 

.  127 

.  291 

.  264 

.  290 

.  187 

.  50 

.  48 

227,  228 

.  264 

.  162 

164, 156 
96,  97 

186,  191 


XVlll 


CASES  CITED. 


I. 

Ihl  V.  Forty-second   Street 
R.  Co 

Ilott  V.  Wilks     .     .     . 
Ilsley  V.  Nichols  .     .     . 
Indiaua  R.  Co.  v.  Tyng 
IngersoU  v.  Junes    .     . 
Iniiian  v.  FosIlt  .     .     . 
Insurance  Co.  v.  Tweed 
Ireson  v.  Pearman  . 
Irwin  V.  Dearman  .     . 
Isaack  v.  Clark  .     .     . 
Israel  v.  Brooks      .    . 

J. 

Jackson  v.  Smitlison  . 
James  v.  Campbell  .  . 
Jarmain  v.  Hooper  .  . 
Jarnigan  v.  Fleming  . 
Jefferies  v.  Great  Western 
Railway  Co.  .  .     . 

Jefts  V.  York 

Jekyll  V.  Moore  .... 

Joannes  v.  Bennett      .     . 

Johnson  v.  Chambers  .     . 

V.  Maxon  .     .     . 

V.  Smith    .     .     . 

V.  Tompkins  .     . 

V.  Wallower  .     . 

V.  West   Chester 

P.  R.  Co.     . 

Johnson's  Estate     .     .     . 

Jones  V.  Andover    .     .     . 

V.  Festiniog   Railway 

Co.    .     . 

V.  Pearce .     . 

Jordan  v.  Money    . 

Justice  V.  Wendell . 


821 

289 
180 

20 
152 

69 
313 
273 
152 
198 

81 


248 

103 

130 

69 

187 
10 
54 
fi8 
82 

129 
19 

115 
31 

311 

282 
309 

255 

211 

16 

202 


K. 

Kauffman  v.  Giesemer     .     .  241 

Kellar  v.  Equitable  Ins.  Co.  29 

Kelley  v.  Davis 151 

Kemp  V.  Thompson     .     .164,  188 

Kennard  v.  Willmore  .     .     .  286 

Kennedy  v.  Green  ....  305 
Kcrwhacker    v.    Cleveland, 

&c.,  R.  Co 251 

Kiefer  v.  Rogers     ....  26 

Kimball  v.  JVAwa.  Ins.  Co.    .  16 


Kimball  v.  Harm  an 
King  V.  Eagle  Mills 
V.  Kilne      .     . 
V.  Root .     .     . 
Kintzing  v.  McElrath 
Knight  V.  Abert 
V.  Gibbs 
V.  Quarles  . 
Kost  V.  Bender  .    . 


L. 


PAGE 

.  97 
9 
.  183 
.  50 
.  12 
291,  292 
.  66 
.  273 
16,21 


Lafayette,   &c.,    E.    Co.    v. 

Huffman 319 

Laidlaw  v.  Organ    ....       12 

Lake  v.  King 56 

Lamb  v.  Stone  ....  33,  97 
Laniphier  y.  Phipos  .  .271,274 
Lancaster  Co.  Bank  v.  Smith  267 
Landon  i'.  Emmons  .  .  .  187 
Lane  r.  Boston  &  A.  R.  Co.  266, 268 
Lasala  v.  Holbrook  ...  222 
Laumer  v.  Francis  ....  241 
Lawler  v.  Androsc,  &c.,  R. 

Co 303,  304 

Lawrence  v.  Ober  ....     175 
Leather  Cloth  Co.  v.  Ameri- 
can Leather  Cloth  Co. .     . 
LeClair  v.  St.  Paul  &  P.  R. 

Co 

Lee  V.  Jones  .  . 
Leland  v.  Tousey 
Leverick  v.  Meigs 
Levy  i\  Brannan 
Lewis  V.  Clement 
V.  Levy  . 
Lienow  v.  Ritchie 
Liford's  Case 

Livingston  v.  McDonald  234,  241, 
256 
V.  Mott ....     166 
Lobdell  V.  Baker     .     .     .      11,  22 
Lockhardt  v.  Lichtenthaler  .     317 
Lock  wood  V  Dall   ....     202 
Loom  is  V.  Terry      .   250,  289,  308 
Losee  v.  Buchanan      .     .     .    257 
Louisville  Canal  Co.  v.  Mur- 
phy   . 320 

Lovejoy  v.  Murray  .  .  .  198 
Lumbj'  V.  Allday  ....  46 
Lundey  i'.  Guy  ,  .  141,  142,  143 
Luther  v.  Winnisimmett  Co.    234 


34 


303 

13 

174 

278 

87 

57 

58 

165 

171,  172.  173 


CASES  CITED. 


XIX 


Lynch  v.  Kniglit 
V.  Nardin 
V.  Smith  . 


PAGE 

,  .  42 
,  .  320 
,  820,  321 


M. 


McAlcer  v.  Horsey      .     . 

17 

McAvoy  V.  Medina      .     . 

188 

V.  Wright      .     . 

28 

McCorniick  v.  Seymour  . 

207 

McDaniel  v.  Baca   .     .     . 

35 

V.  Trafton  .     . 

19 

McFarhlen  v.  Robinson    . 

15 

Mactiidyen  r.  Olivant 

181 

McGar  v.  Williams      .     . 

21 

McGuire  i'.  Grant  .     . 

221 

Macliin  v.  Geortner     .     . 

167 

Mclvinney  v   Smith     . 

233 

McLc'od  V.  Jones     .     .     . 

17G, 177 

Maih-as  Kailway  Co.  v.  ''. 

lie 

Zemindar    .... 

.    255 

Mahurin  v.  Harding    . 

18,20 

Malaciiy  v.  Soper    .     .     . 

.      35 

Maleom  v.  Spoor     .     . 

.     180 

Mallory  v.  Leach     .     . 

.      17 

Manly  v.  Field    .     ,     . 

.     145 

Manning  v.  Wells   .     . 

.    264 

Manvell  v.  Thompson 

.     152 

Marsh  v.  Billings    .     .     . 

36,  37 

Marshall  v.  Cohen  .     . 

.     254 

V.  Davis    .    179, 

202,  203 

Marshalsea,  Tlie     .     . 

,     125 

Martin  v.  Jordan     .     . 

.       14 

V.  Kiddle      .     . 

.    241 

V.  Payne      .     . 

145,  146 

Marzetti  v.  Williams  . 

.    263 

Mathews  v.  Harsell 

.     189 

Matlock  V.  Todd     .     . 

.      26 

Matthews  v.  Beach 

.     .      58 

Matts  V.  Hawkins   .     . 

.     .    226 

Mannder  v.  Venn    .     . 

110,  146 

Maxwell  v.  Palmerston 

.     183 

May  V.  Burdctt  .     .     . 

. 248,  289 

V.  Western  Union  *" 

rei. 

Co 

.   20,277 

Mayer  v.  Walter     .     . 

.     .      83 

Mayhew  v.  Forrester  . 

.     .    280 

V.  Herrick     . 

.     .    203 

Mead  v.  Bunn     .     .     . 

.    .      26 

Medhury  v.  Watson    . 

.     .      14 

Mellors  v.  Shaw  .     .     . 

.    .    301 

Merkle  v.  Ottensmeyer 

.      87 

PAGE 

Merrifield  v.  Worcester  232,  236, 

236 

Merritt  v.  Clagiiorn 

Mersey  Docks  v.  Gibbs 

Meyer  v.  Schleichler  . 

Milan,  The     .... 

Milhau  V.  Sharp      .     . 

Millen  v.  Fawdry    .     . 

Miller  v.  Foley   .     .     . 

V.  Parish  .     .     . 

V.  Proctor     .  281, 

Millington  v.  Fox    .     . 

Milwaukie  R.  Co  v.  Arms 

Mitchell  V.  Jenkins 

Mizner  v.  Kussell    .     . 

Molmey  v.  Cook      .     . 

Moore  v.  Meagher  .     . 

V.  Morgue    .     . 

V.  Westervelt   . 

Morehead  v.  Eads  .     . 

Moreland  v.  Atchison . 

Morgan  v.  Cogswell    . 

V.  Marquis 

V.  Rarey     .     . 

V.  Skiddy  .     . 

V.  Vale     of     Neath 
Railway  Co 

V.  Varick  . 
Morris  v.  Scott  .  . 
Morse  v.  Dearborn. 
Mortin  v.  Sheppee  . 
Morton  v.  Gloster  . 
Mott  V.  Dawson  .  . 
Mulligan  v.  Curtis  . 
Murciiie  v.  Black  . 
Murphy  v.  Deane  .  306 
Murray  v.  Hall  . 
Myers  v.  Dodd    . 

N. 

Nash  V.  Mosher  .  .  179,  202,  203 
Newkirk  v.  Sabler  ....  176 
Newmann  v.  Sylvester  .  .  20 
New  World,  The  ...  .  266 
New  York  &  W.  Tel.  Co.  v. 

Dryburg 277,314 

Nixon  V.  Jenkins  ....  201 
Norcross  v.  Norcross  .  .  .  264 
Norris  v.  Litchfield  ...  308 
North  Penn.  R.  Co.  v.  Maho- 

ney 320 

Noyes  v.  Loring 20 


.  264 
.  285 
.  43 
.  817 
.  244 
.  177 
.  117 
.  43 
282,  283 
.  36 
.  266 
86,87 
11,  13 
309 
42 
280 
286 
15 
18 
183 
203 
264 
21 


302 

171 

89 

19 

100 

310 

62 

322 

222 

311,  812 

169 

251 


XX 


CASES  CITED. 


o. 

PAGE 

Oakes  v.  Spaulding  .  .  .  248 
O'Brien  v.  Barry  ...  71,  "2 
Oiliorne  i'.  VVinkley  .  .  .  207 
O'Donoghue  v.  Hussey  .  .  63 
Ogburn  v.  Connor  ....  241 
O'Keefe  v.  Chicago,  &c.  R.  Co.  312 
Oimstead  v.  Miller  ....  42 
V.  l^artridge  .  .  83 
Onslow  V.  Home  ....  47 
Oppenliem   v.    White    Lion 

Hotel  Co 264 

O'Hiloy  V.  McCheeney     .     .     235 
Oiitcalt  ('.  Dnrling      163,  164,  186 

Oviatt  r.  Sage 203 

Owen  V.  Henman    ....    243 


P. 

Paddock  v.  Strobridge 
Page  V.  Parker    .     . 
V.  Robinson    . 
Palmer  v.  Concord  . 
Panton  v.  Holland  . 
Pappa  V.  Rose      .     . 
Parliani  v.  Randolph 
Park  ij.  Hammond  . 
Parker  v.  Huntington 
Parsons  v.  Webb 
Partridge  v.  Gilbert 
Pasley  v.  Freeman     1 
Pater  v.  Baker    .     . 
Patterson  v.  Kirkland 
V.  Wallace 
Pattison  v.  Jones     . 
Paull  V.  Halferty     . 
Payson  v.  Caswell  . 
Peake  i'.  Oldham    . 
Peard  v.  Jones    .     . 
Pease  v.  Chaytor    . 
Peck  ('.  Gurney  .     . 
Peckham  ik  Tomlinson 
Pedrick  v.  Porter    . 
Penn  v.  Preston  .     . 
Penruddock's  Case 
Percy  v.  Millaudon . 
Perham  v.  Coney    . 
Perry  v.  Phipps  .     . 
Perryman  v.  Lister 
Peyton  v.  London   . 
Pliilp  V.  Squire  .     . 
Philpot  V.  Keliey     . 
Picard  v.  McCormick 


24 


12 

15,  93 

106 

62 

222 

286,  287 

26 

280 

72,92 

202 

226 

30,  82 

35,30 

12 

301 

65 

16 

79 

39 

46 

126 

33 

128 

16 

167 

178 

284 

198 

183 

135 

225 

155,  157 

.     196 

16,21 


PAGE 

Pickard  v.  Sears     ....     197 
Pierce  v.  Van  Dyke    .     .     .     179 

Pike  V.  Fay 16,  22 

Pilkington  v.  Scott      .     .     .     142 

Piper  V.  Manny 264 

Pippett  1-.  Hearne   ....      89 
Pitt  V.  Donovan ....     35,  36 
V.  Petway    ....  203,  204 
Pittsburgh,   &c.,   R.    Co.   v. 

Devinney .     .     804 
V.  Vining  .     .     .     819 
Place  V.  Minster      ....       97 
Playford  v.  United  Kingdom 

Tel.  Co 20,  276,  277 

Polhill  V.  Walter     ....       .32 
Policy  V.  Lenox  Iron  Works     199 

Pool  V.  Lewis 232 

.  248 
.  286 
22 
300,  302 
.  102 
.  317 
.     183 


Popplewell  V.  Pierce  . 

Pratt  V.  Gardiner    .  . 

Preston  v.  Mann      .  . 
Priestley  c.  Fowler 

Pursell  V.  Horn    .     .  . 
Puterbaugh  i\  Reason 

Putnam  v.  Payne    .  . 

R. 

Radcliff  V.  Brooklyn 
Randall  v.  Trimen  . 
Ravenga  v.  Mackintosh 
Rawstron  v.  Taylor 
Raymond  v.  Andrews 
Rea  V.  Tucker     .     . 
Reddie  v.  Scoolt 
Reevis  i\  Smith 
Regina  v.  Cotesworth 
Rex  t".  Abingdon     . 

V.  Crcevy    .     . 

V.  Veley.     .     . 
Reynolds  v.  Kennedy 
Rich  r.  Pierpont 
Richards  v.  Jenkins 
V.  Rose     . 
Richart  v.  Scott 
Riley  v.  Baxendale 
V.  Home  .     . 
Ritcliey  v.  West 
Robbins  V.  Borman 
Roberts  v.  Connelly 
V.  Smith     . 
V.  Wyatt    . 
Robinson  v.  May     . 

V.  Threadgill 


221 
19 

78,84 

234 

174 

158 

152 

54 

102 

55 

55 

63 

81 

274 

229 

224 

222 

300 

268 

275 

168 

151 

298 

186 

60 

263 


CASES   CITED. 


XXI 


Rockwell  V.  Proctor  . 
RodjTors  r.  Nowill  .  . 
Rolian  v.  Sawin  .  .  . 
Rogers  v.  Arnold  .  . 
V.  Place  .  .  . 
Root  V.  King  .... 
Rose  V.  Miles  .... 
Roseman  v.  Canovan  . 
Ross  r.  Fedden  .  .  . 
Rowbotliaiii  V.  Wilson 
Rowortli  ('.  Wilkes  .  . 
Rutlierford  v.  Williams 
Rylands  v.  Fletcher     . 


134, 


PAGK 

2(54 
36 
135 
.  187 
.  29 
.  62 
244,  245 
.  27 
.  254 
.  220 
.  216 
.  32 
.    253 


St.  Helen's  Smelting  Co.  v. 


Tippinsj 


31),  240,  242 


Salem  Rubber  Co.  v.  Adams       25 


Salmon  ".  Ciitts . 
Sanborn  v.  Neil  son 
Sans  V.  Joerris    . 

Sargent  i'. . 

V.  Blunt 
Saunders  i:  Smith 
Savacool  v.  Boughton 
Savage  v.  Walthew 
Saville  v.  Roberts  . 
Sawin  v.  Guild   .     . 
Sayles  v.  Briggs 
Scliroyer  v.  Lynch  . 
Schrieve  v.  Stokes . 
Schuneman  v.  Palmer 
Scott  V.  Shepherd 

V.  Stansfield 

V.  White    . 
Scribner  v.  Beach 
Seaman  v.  Bigg  . 
Seaver  v.  Boston  &  M.  R. 
Seeley  v.  Brush 
Severin  c.  Keppell 
Sliaw  V.  Berry    .     . 
Sheckell  v.  Jackson 
Slielfer  u.  Gooding . 
Sliergold  r.  Holloway 
Sherry  i\  Picken     . 
Shipley  v.  Fifty  Associates . 
Shook  V.  Rankin 
Shorland  v.  Govett 
Sibley  v.  Aldrich 
Silloway  v.  Brown 
Simmons  v.  Lillystone 
Singleton  v.  Bolton 


.  288 

.  158 

.  GO 

.  151 

.  197 

.  215 

.  123 

.  281 

.  87 

.  211 
75 

.  285 

.  228 

.  156 

.  312 

.  54 

-  118 
105, 107 

.  47 


PAGE 

Six  Carpenters'  Case  180, 181, 182 


Co. 


304 
230 
201 
264 
59 
52 
122 
202 
256 
219 
180 
264 
170 
200 
36 


Co 


Skipp  V.  McGraw 
Smart  v.  Blanchard 
Smith  V.  Ashley 

V.  Countryman 

V.  Fletcher 

V.  Higgins 

V.  Ken  rick 

V.  London  Docks 

V.  O'Hara     . 

V.  Smith  .     . 

V.  Stewart    . 

V.  Sydney     . 

V.  'J'hackerali 
Snow  V.  Allen     . 

V,  Housatonic  R.  Co 
Solomon  v.  Vintners'  Co 
Sommer  v.  Wilt 
South  L\  Denniston 
Southcote  V.  Stanley 
Sparhawk    v.   Union    Pass 

Ry.  Co 

Speight  V.  Oliviera 
Springfield  v.  Harris 
Stanley  v.  Gay  lord 
Stark  V.  Cliitwood  , 
Starkweather  v.  Benjamin 
Starr  v.  Jackson 
Stedman  v.  Smith  . 
Steele  v.  Southwick 
Stephens  v.  Baird  . 

V.  Myers .     .99, 
V.  Wilkins 
Stevens  v.  Hartwell 
Stewart  y.  Johnson 
Stiles  V.  White    .     . 
Stockdale  v.  Hansard 
Stockley  r.  Ilornridge 
Stone  r.  Cooper 

V.  Covell  .     . 

V.  Stevens 
Story  V.  Holcombe 
Stowe  V.  Tliomas    . 
Straus  V.  Young 
Strayan  r.  Knowles 
Strickland  r.  Parker 
Stuart  c.  Cole      .     . 
Sturgis  r.  Keith  .     . 
Suggs  !-.  Anderson . 
Sullivan  v.  Union  Pacifi 

Co 

Sutton  i:  Huffman  . 
V.  Wauwatosa 


44 
51 

50 
12 

253 

60 

254 

298 

233 

44,  317 

44,51 

128 

223 

83 

301 

225 

90 

151 

294, 295 


243 
146 

232,  233 

»,  202 

35 

27 

165 

227 

49,  50 

197 

100, 101 

122 

69 

94 

95 

55 

95,  96 

49 

22 

89 

218 

219 

87 

223 

204 

90 

202 

105 


112 
147 
309 


XXll 


CASES  CITED. 


PAGE 

Swain  r.  Stafford  ....  79 
Sweeney  v.  Baker  ....  G2 
Sweeny    r.    Old   Colony   R. 

Co 290.  293,  294 

Sweet  V.  Benning    ....     215 

V.  Sweet 215 

Swett  V.  Cutts  .  .  235,  241,  256 
Swift  v.  Winterbothara    .     .       33 

Swinim  v.  Bush 27 

Sykes  v.  Dixon 142 

V.  Sykes 36 


Talmadge  i\  Scudder 
Tarlton  v.  Fisher     . 
Taylor  v.  Leith  .     . 
Tebbut  V.  Bristol  &  E. 
Terry  v.  Hutchinson 
Tervvilliger  v.  Wands 
Tharsis  Sulphur  Co.  v 
Thickstun  v.  Howard 
Thomas  v.  Churton 

V.  Winchester 

Thompson  v.  Ross  . 

V.  Rowe 

V.  Shaken 

Thorley  v.  Kerry    . 

Thorogood  v.  Bryan 

V.  Robinson 
Thurston  v.  Hancock 
Tickell  V.  Read  .     . 
Timm  v.  Bear     .     . 
Timothy  v.  Simpson 
Toledo,  &c.  R.  Co.  v. 
Telle  V.  Correth      . 
Tootle  V.  Clifton 
True  V.  International 
Trusler  o.  Murray  . 
Tuberville  v.  Savage 
Tuck  V.  Downing    . 
Tuff  V.  Warnian 
Tuilidge  /;.  Wade    . 
Turner  v.  Ambler   . 
V.  Sullivan  . 
Turpin  v.  Remy 
Twaddle's  Appeal  . 


202 

124 

.     .       23 

R.  Co.    298 

,     146 

41,  42 

Loftus    286 

.     264 

.       54 

.     313 

.     110 

.     202 

.      57 

.      49 

.    317 

.^   200 

221,  222 

.     108 

.     232 

.     137 

Conray     308 

.     234 

241,  250 

Co.    27(5 

.     .     21G 

.     .       99 

.      14,  24 

.310,311 

.     .     181 

77,  85,  86 

.     .       68 

.     .       89 

.     .     281 


Tel. 


V. 

PAOB 

Van  Brunt  v.  Schenck  .  .  172 
Vanderbilt  v.  JMatliis  .  .  82,  86 
Van  Epps  v.  Harrison  .  .  15 
Van  Horn  v.  Freeman  .  .  147 
Van  Wyck  v.  Aspinwall.  .  61 
Vaughan  v.  Taff  Vale  Ry.  Co.  254 
Venard  v.  Cross  ....  246 
Vincent  v.  Stiuehour  .     .     .     103 


u. 

United  Soc.  v.  Underwood  284,314 
Upton  V.  Tribilcock    ...       17 


w. 

Wait  V.  Richardson     .     .     . 
Waite   V.  Northeastern  Ry. 

Co 

Wakefield  v.  Buccleugh 
Walker  v.  Cronin    .  109,  140, 

V.  Guarantee  Assoc. 
Walsh  I'.  Feet  Valve  Co. 
Walsham  r.  Stainton  . 
Walter  v.  Sample 

V.  Selfe  ....  242, 
Walton  V.  Fotter 
Ward  V.  Clark  . 
Warren  v.  Swett 
Wason  V.  Walter 
Watling  V.  Oaster 
Watkin  v.  Hall  . 
Watson  V.  Bladen 

V.  McCarty 
Weaver  v.  Ureka  Lake  Co. 

V.  Ward 
Webster  v.  Bailey 

V.  Hudson  River  R. 
Co.  .  . 
Weedon  v.  Timbrell  . 
Weger  v.  Penn.  R.  Co. 
Weld  V.  Oliver  .  .  . 
Welfare  v.  London  &  B.  Ry. 
Co 


170 


Wesson   v.  Washburn    I 
Co 

Western  Union  Tel.  Co 
Carew 

Weston  V.  Bceman  .     . 

Wiieatley  v.  Chrisman 

Wheatly  v.  Harris  .     . 

Wheaton  v.  Peters  .     . 

Wheldon  v.  Chappell  . 

Wliite  V.  Brooks  .  . 
V.  Dewarg  .  . 
V.  Garden     .     . 


270, 
231, 


819 

220 
142 
281 
301 

95 

85 
243 
206 

40 
305 

59 
301 

69 
211 

45 
233 
103 

27 

317 
157 
302 
203 

294 

244 

277 
94 
235 
182 
215 
310 
203 
202 
192 


CASES  CITED. 


XXUl 


White  V,  Madison 
V.  NiclioUs 
V.  Phelps 
Whitehead  v.  Greetham 
Whiting  V.  Hill 
Whitman     Mining     Co. 

Tritle 

Whittemore  v.  Cutter  , 
Wiggins  V.  Hatliaway 
Wilder  V.  DeCou    .     . 
Wilkins  v.  Aikin     .     . 
V.  Earle      .     . 
Wilkinson  /'.  Fairrie    . 
V.  Ilaygarth 
V.  Proud     . 
Willans  v.  Taylor   .     . 
Williams  v.  Chadbourne 
V.  Clouch 
V.  Esling .     . 
W.Hill.     .     . 
V.  Norwood  . 
);.  Smith  .  128 
Willis  V.  Vallette     .     . 
Wilson  V.  Brett  .     .     . 
V.  Goit    . 
V.  Newbury 
V.  New  Bedford 
V.  Read  .     .     . 
V.  Webster .     . 


PAOK 

,   19 


202 

210,211 
.  285 
9 
.  216 
.  264 
.  298 
.  170 
.  227 
.  82 
.  203 
.  301 

174,  175 
.  42 
.   81 

129,  130 
.  305 
,  266 
.  41 
.    255 

285,  237 
.     203 

167, 159 


PAGK 

Winterbottom  v.  Derby  .    .  246 

V.  Wright      .  814 

Witham  v.  Gowan  ....  76 

Witherspoon  v.  Blewett  .  .  201 
Wolf  V.  Western  Union  Tel. 

Co 276 

Wolfe  V.  Door 286 

Wood  V.  Clapp 275 

V.  Cooper      .    »    .     .  279 

V.  Wand 230 

Woodman  ,:  Hubbard  .  .  310 
Woolf  V.  Chalker  .  .  .  183,  289 
Wren  l-.  Weild   .     .     .     86,71,78 

Wright  V.  Court      ....  119 

Wyndham  v.  Wycombe  .     .  158 


Y. 

Yates  V.  Lansing 
Yocum  V.  Polly  . 
York  V.  Pease  . 
Young  V.  Miller . 
V.  Spencer 


Z. 

Zoebisch  v.  Tarbell 


286 
82 
56 
44 

166 


297 


INTRODUCTION. 


INTRODUCTION 


The  substantive  law  of  torts  treats  of  the  civil  as- 
pect of  duties,  and,  by  consequence,  of  the  breach  ol 
duties,  which  govern  the  relations  of  individuals  to 
each  other  (1)  as  mere  members  of  the  State  ;  or  (2) 
as  occupying  some  special  situation  towards  each 
other  not  produced  by  agreement  inter  sese ;  or  (3) 
as  occupying  some  special  situation  of  agreement 
inter  sese  which  affords  occasion  for  breaches  of  duty 
between  them  that  need  not  be  treated  as  breaches 
of  contract. 

Most  of  the  law  of  torts  will  be  found  to  fall  under 
the  first  division,  —  that  of  breaches  of  duty  between 
individuals  as  mere  citizens.  The  law  relating  to  the 
following  subjects  belongs  to  this  head :  Deceit  (in 
part).  Slander  and  Libel,  Malicious  Prosecution, 
Conspiracy,  Assault  and  Battery  (in  part).  False 
Imprisonment  (in  part).  Enticement  and  Seduction, 
Trespasses  upon  Property  (in  part).  Conversion,  In- 
fringements of  Patents  and  Copyrights,  Violation  of 
Rights  of  Support,  Violation  of  Water  Rights,  Nui- 
sance, Damage  by  Animals,  Escape  of  Dangerous 
Elements  or  Substances,  and  Negligence  (in  part). 

Under  the  second  division,  —  where  a  duty  has 
been  broken  which  prevailed  by  reason  that  the  par- 


4  INTRODUCTION. 

ties  concerned  occupied  a  special  situation  towards 
each  other,  not  produced  by  agreement  inter  sese^  — 
will  fall  the  law  relating  to  Public  Officers  (under 
which  subject  is  included  that  part  of  the  law  relat- 
ing to  Assault  and  Battery,  False  Imprisonment,  and 
Trespasses  upon  Property,  not  embraced  under  the 
first  head),  and  the  law  relating  to  the  duty  of  Inn- 
keepers to  receive  guests,  and  of  Common  Carriers  to 
receive  passengers  or  goods,  according  to  the  nature 
of  their  business,  and  the  law  of  Waste. 

Under  the  third  division,  where  parties  occupy 
a  situation  of  agreement  among  themselves  which 
affords  opportunity  for  breaches  of  duty  that  need 
not  be  treated  as  breaches  of  contract,  will  fall  a 
part  of  the  law  relating  to  Deceit,  which  is  also 
embraced  under  the  first  head,^  and  the  law  re- 
lating to  Innkeeper  and  Guest,  Common  Carriers, 
other  Bailees,  and  other  Contractors,  several  of 
these  subjects  being  also  embraced  under  the  title 
Negligence. 

The  liability  of  a  principal  for  the  torts  of  his 
agent,  or  of  a  master  for  the  torts  of  his  servant,  forms 
no  part  of  a  consideration  of  the  nature  of  torts,  but 
belongs  to  the  subject  of  agency  ;  since  the  question 
in  such  cases  is,  not  whether  the  act  complained  of  is 
a  tort,  but  whether,  conceding  it  to  be  a  tort,  the 
principal  or  master  is  liable  ;  in  other  words,  not 
whether  a  tort  has  been  committed,  but  who  com- 
mitted it.  It  would  not  be  useful,  however,  to  adhere 
too  strictly  to  the  consequences  of  this  fact ;  for  it 

1  Deceit  in  sales,  in  which  the  wrong  may  be  treated  as  either  a 
tort  or  a  breach  of  warranty. 


INTRODUCTION.  5 

often  happens  that  the  question  of  agency  is  so  inti- 
mately associated  witli  the  question  of  the  commis- 
sion of  the  tort  that  to  draw  the  line  sharply  would 
be  to  conform  to  theoretical  divisions  at  too  great  an 
expense. 

Such,  also,  would  be  the  inconvenience  to  arise 
from  breaking  up  well  recognized  subjects  of  the  law, 
that  it  is  not  advisable  to  adhere  too  strictly  to  the 
general  division  suggested.  It  will  doubtless  be  bet- 
ter to  present  the  topics  indicated  as  belonging  in 
part  to  one  head  and  in  part  to  another,  in  full  in 
Dne  place  ;  and  then  to  make  such  further  reference 
to  tliem  elsewhere  as  may  be  important. 

The  following  are  closely  related  subjects  by  reason 
of  the  peculiar  animus  (intent)  which  must  be  shown 
as  essential  to  a  right  of  redress  for  the  alleged  breach 
of  duty  :  Deceit,  Slander  and  Libel,  Malicious  Prose- 
cution, and  Conspiracy.  In  cases  arising  under  any 
of  these  heads,  excepting  Slander  and  Libel,  express 
evidence  of  the  intent  must  generally  be  given  ;  but 
the  animus  may  be  disproved  though  the  act  itself 
was  voluntary. 

In  cases  arising  under  any  of  the  following  heads, 
a  wrongful  intention  is  shown  by  proof  of  the  com- 
mission of  the  act,  and  cannot  be  disproved  except 
by  showing  that  the  act  was  constrained:  Assault  and 
Battery,'  False  Imprisonment,  Enticement  and  Seduc- 
tion, Trespasses  upon  Property,  Conversion,  Infringe- 
ments of  Patents  and  Copyrights,  Violation  of  Rights 
to  Support,  Violation   of  Water  Rights,   Nuisance, 

^  The  question  of  intent  to  commit  an  assault  or  a  battery  is 
peculiar,  as  will  be  seen  in  the  examination  of  the  subject. 


6  INTRODUCTION. 

Damage  by  Animals,  and  Escape  of  Dangerous  Ele- 
ments or  Substances. 

In  cases  arising  under  the  head  of  Negligence,  the 
breach  of  duty  consists  in  damage  caused  by  a  failure 
to  conform  to  the  care  or  diligence  or  skill  observed 
by  prudent  men.  Here  the  result  may  be  treated  as 
presumably  intended.  It  has  happened  as  the  natural 
consequence  of  the  conduct  in  question ;  it  was  there- 
fore to  be  expected  by  the  person  guilty  of  it.  That 
is,  he  intended  it.  No  express  evidence  to  that  effect 
is  required. 

These  topics,  all  of  which  fall  under  the  first  gen- 
eral division  of  duties  prevailing  between  individuals 
as  mere  members  of  the  State,  will  be  presented  in 
the  order  of  grouping  here  given.  The  topics  falling 
under  the  second  general  division  will  follow ;  and, 
after  these,  those  of  the  third  division.  The  topics 
of  the  second  and  third  divisions  will,  however,  be 
substantially  disposed  of  (owing  to  their  connections) 
under  the  first  division  ;  so  that  nothing  more  than  a 
succinct  statement  of  the  duties  involved  will  after- 
wards be  necessary. 


ELEMENTS 


THE    LAW    OF    TORTS. 


ELEMENTS 


OF 


THE    LAW    OF    TOUTS. 


I.  DUTIES  WHICH  GOVERN  THE  RELATIONS  OF  INDI- 
VIDUALS TO  EACH  OTHER  AS  MERE  MEMBERS 
OF   THE   STATE. 


CHAPTER  I. 
DECEIT. 

§  1.   Introductory. 

Statement  of  the  duty.  A  owes  to  B  the  duty  to  forbear 
to  mislead  him  to  his  prejudice  b}'  false  and  artful  repre- 
sentations, apt  to  mislead. 

OBSERVATIONS. 

1.  Deceit,  properh'  speaking  (that  is,  not  mere  mistake 
in  the  partj'  committing  it) ,  is  a  ground  of  defence  to  the 
enforcement  of  a  contract,  and  is  also  gi-ound  for  proceed- 
ings by  the  injured  party  to  rescind  a  contract ;  provided 
the  deceit  was  a  material  inducement  to  the  formation  of 
the  contract.  In  such  cases,  the  same  facts  are  necessary' 
for  establishing  the  deceit  as  are  necessary  to  an  action  of 
or  for  deceit.^  Hence,  authorities  concerning  the  proof  of 
actual  deceit  in  such  cases  of  contract  are  authorities  by 

*   King  V.  Eagle  Mills,  10  Allen,  548;  Wilder  v.  De  Cou,  18  Minn.  470. 


10  DUTIES   OF  INDIVIDUALS   INTER  SE.       [Chap.  1 

proper  inference  for  an  action  for  damages  by  reason  of 
such  deceit. 

2.  The  action  at  law  for  damages  by  reason  of  deceit  is 
called  indifferently  an  action  of  deceit  or  an  action  for 
deceit.  The  former  term  points  to  the  form  of  the  action  ; 
the  latter  to  the  substance  of  it. 

3.  When  it  is  said  that  a  particular  representation  is  a 
breach  of  duty,  or  of  legal  duty,  or  of  the  duty  under  con- 
sideration, it  is  to  be  understood  that  the  other  elements 
necessary  to  constitute  the  complete  breach  of  duty  (where 
not  referred  to)  are  supposed  to  be  present. 

4.  The  breach  of  duty  affords  a  right  of  action  for 
damages. 

5.  These  observations  will  be  true  of  the  other  subjects 
of  the  work,  so  far  as  applicable  to  them,  and  need  not  be 
repeated  with  each  new  chapter. 

In  order  to  establish  a  breach  of  the  duty  above  stated, 
and  to  entitle  B  to  civil  redress  therefor,  B,  unless  he  come 
withiu  one  of  the  qualifications  to  the  rule,  must  make  it 
appear  to  the  court  that  A  has  made  (1)  a  false  represen- 
tation of  material  facts ;  (2)  that  he  made  the  same  with 
knowledge  of  its  falsity;  (3)  that  he  (B)  was  ignorant  of 
its  falsity  and  believed  it  to  be  true  ;  (4)  that  it  was  made 
with  intent  that  it  should  be  acted  upon ;  (5)  that  it  was 
acted  upon  by  him  (B)  to  his  damage.  But  each  of  these 
general  elements  of  the  rights  of  redress  must  be  separately 
examined  and  explained,  and  the  qualifications  to  the  same 
presented.  The  designation  of  the  parties  as  A  and  B  may 
now  be  dropped,  and  B  will  be  spoken  of  as  the  plaintiff, 
and  A  as  the  defendant. 

§  2.  Of  the  Representation. 
It  is  proper  first  to  consider  the  meaning  of  the  ternj 
"  representation "  and  its  nature,  and  thus  to  ascertain 


§  2  1  DECEIT.  11 

what  sort  of  representation  is  necessary  (assuming  the 
other  elements  present)  in  order  to  entitle  the  plaintiff  to 
redress  against  the  defendant. 

The  representation  need  not  be  in  words  :  there  is  no  dis- 
tinction in  law  between  deception  practised  by  acts  or 
active  conduct  alone  and  deception  practised  by  words. 
For  example  :  The  defendant  procures  the  indorsement  of 
a  part}'  to  a  note  or  bill,  in  order  to  effect  a  sale  of  it  to 
the  plaintiff.  This  act  is  deemed  to  be  equivalent  to  an 
affn-mation  that  such  person  is  competent  to  indorse  the 
paper  and  thus  to  bind  himself  by  his  indorsement ;  and,  if 
he  be  not,  the  defendant,  who  procured  the  indorsement, 
is  liable  to  the  plaintiff,  to  whom  he  sold  the  paper  b}' 
means  of  the  deception.^  Again  :  The  defendant  sells  to 
the  plaintiff  personal  property,  of  which  he  is  in  possession. 
This  is  deemed  an  affirmation  that  he  is  the  owner  thereof; 
and,  if  that  be  not  the  truth,  he  is  liable  to  damages  in 
favor  of  the  purchaser.^ 

In  the  cases  of  which  these  two  are  examples,  the 
representation  is  implied,  not  from  any  peculiar  overt 
conduct  of  the  defendant,  but  because  it  is  deemed  to  be 
a  reasonable  interpretation  of  the  act  of  selling  the  note  or 
bill,  or  the  goods,  that  the  purchaser  should  believe  the 
paper  to  be  enforceable  or  the  goods  to  be  the  seller's. 

A  like  rule  of  law  prevails  in  regard  to  those  incidents 
of  a  sale  of  goods  intended  for  a  special  purpose,  which 
materiall}'  affect  the  quality  and  usefulness  of  the  arti- 
cles. The  vendor  of  provisions  sold  for  consumption  is 
liable  to  the  purchaser  if  the}'  be  not  wholesome,  though 
no  statement  was  made  concerning  them,  or  any  attempt 
made  to  mislead  the  purchaser  as  to  their  condition.  One 
who  manufactures  goods  for  a  particular  person,  for  a 
special  use  known  to  the  former,  subjects  himself  to  liabil- 

•-1  Lobdell  V.  Baker,  1  Met.  193^Mizne^  v.  Kussell,  29  Mich.  229. 
*  Coolidge  V.  Brigham,  1  Met.  547,  561. 


12  DUTIES   OF  INDIVIDUALS   INTER  SE.       [Chap.  I. 

itj'  if  they  do  not  answer  the  intended  purpose.  A  secret 
defect  in  an  article  sold,  materially  changing  its  nature, 
and  rendering  it  unfit  for  the  purpose  for  which  it  was 
intended,  ma}^  also  render  the  seller  liable  in  damages  to 
the  pui'chaser.^  These  instances  are  none  the  less  in- 
stances of  torts  because  they  may  be  treated  as  breaches 
of  contract. 

With  the  exception  of  cases  covered  in  principle  b}-  some 
of  these  special  illustiatioiis  of  liability  for  representations 
implied  from  passive  conduct,  such  conduct  is  not  treated 
as  amounting  to  a  breach  of  legal  duty.  Mere  passive 
concealment  in  other  cases,  that  is,  concealment  not  at- 
tended with  an}'  active  misconduct  tending  to  mislead  the 
plaintiff,  is  deemed  not  to  afford  a  ground  of  action. 
The  buyer  of  propert}'  is  not  guilty  of  a  breach  of  legal 
duty  by  reason  of  his  failure  to  communicate  to  the  seller 
intelligence  of  external  circumstances  not  known  to  the 
latter  which  might  materially  influence  the  price  of  a  com- 
modity.^ The  slightest  misconduct  of  an  overt  nature, 
having  a  natural  tendency  to  mislead,  will,  however,  serve 
to  make  the  defendant  liable.^ 

Where,  however,  the  defendant  has  been  charged  with 
conduct  of  an  overt  character,  amounting  to  a  breach  of 
his  duty,  the  whole  course  of  his  conduct  on  the  occasion 
in  question  may  be  taken  into  consideration,  as  tending  to 
show  or  to  disprove  the  alleged  breach  of  dut}'.  As  to 
questions  of  this  kind,  it  is  deemed  sufficient  to  estabhsh 
the  right  of  action  in  this  particular  that  the  conduct  of 
the  defendant  was  such,  that  a  reasonably  cautious  and 

— ^  1  See  upon  this  subject  of  passive  concealment,  Paddock  v.  Stro- 

bridge,  29  Vt.  470. 
-=^  2  Laidlaw  v.  Organ,  2  Wheat.  178;  Kintzing  v.  McElrath,  5  Barr, 

467  .--Smith  v.  Countryman,  30  N.  Y.  655,  670,  671.    A  contrary  rule 

prevails  in  Mississippi  and  in    Missouri.     Patterson  v.  Kirkland,  34 

Miss.  423;  Cecil  ;;.  Spurger,  32  Mo.  462. 
*    8  Laidlaw  v.  Organ,  supra. 


§  2.]  DECEIT.  13 

prudent  man  might  be  misled  as  to  the  existence  of  the 
particular  fact.^ 

It  follows  that  when  actual  language  is  used  to  convey 
the  false  representation,  the  defendant  cannot  evade  the 
force  of  the  impression  which  he  has  reason  to  know 
the  plaintiff  has  received  thereby,  by  a  resort  to  a  literal 
meaning  of  the  same,  when  this  is  different  from  its  natural 
meaning  in  the  particular  case.^ 

It  further  follows  that,  to  constitute  a  false  representa- 
tion, it  is  not  necessary  that  statements  should  be  made 
in  tei-ms  expressly  affirming  the  existence  of  some  untrue 
fact.  If  the  alleged  misrepresentation  be  made  by  the 
defendant  in  terms  such  as  would  naturally  lead  the  plain- 
tiff to  suppose  the  existence  of  such  and  such  a  state  of 
facts,  that  is  as  much  as  if  statements  had  so  been  made 
in  exact  terms. ^ 

The  misrepresentation  complained  of  should  also  be 
clear  and  certain :  The  plaintiff  does  not  establish  the 
alleged  breach  of  duty,  if  the  evidence  show  that  the 
representation  was  of  ambiguous  or  otherwise  doubtful 
import.  For  example  :  A  vendor  of  land  points  to  a  cer- 
tain tree  as  the  probable  bouudarj'  of  his  premises,  and  the 
plaintiff  purchases  it  in  reliance  upon  that  statement  as  a 
statement  of  the  actual  boundary.  The  plaintiff  cannot 
maintain  an  action  for  damages  against  the  vendor.* 

This  rule  of  law  rests  upon  the  ground  that  no  man  of 
common  prudence  and  sagacity  would  rely  and  act  upon 
a  representation  of  an  indefinite  nature.  The  fact  that 
the  representation  is  indefinite  would  serve  to  put  such  a 
person  upon  further  inquiry  before  taking  action  ;  and  no 
action  would  finally  be  taken  without  certain  information. 

**"  1  Donovan  v.  Donovan,  9  Allen,  140. 
•-  2  Mizuer  v.  Kussell,  29  Mich.  229. 

8  Lee  V.  Jones,  17  Com.  B.  n.  s.  482 ;  s.  c.  14  Com.  B.  n.  s.  386. 

*  See  Halls  v.  Thompson,  1  Smsdes  &  M.  443. 


/ 


14  DUTIES   OF  INDIVIDUALS  INTER   SE.       [Chap.  I. 

The  plaintiff  in  the  particular  litigation  must  stand  or  fall 
b}'  this  standard.  And  this  is  true  as  well  when  the  repre- 
sentation is  conveyed  b}^  mere  conduct  as  when  it  is  con- 
veyed bj'  words.  The  plaintiff  should  make  it  appear  that 
the  conduct  imported  a  definite  representation,  such  as 
would  justif)'  a  prudent  man  in  taking  the  action  com- 
plained of. 

Upon  the  principle  that  there  can  be  no  breach  of  this 
legal  dut}'  unless  the  representation  be  so  definite  as  to 
justify  a  prudent  man  in  relying  upon  it,  the  representa- 
tion under  consideration  cannot  consist  in  the  expression 
of  an  opinion,  however  false. ^  For  example:  An  agent 
of  a  railroad  compan}'  makes  false  statements  in  regard  to 
the  value  of  a  donation  of  land  made  to  the  company,  and 
in  regard  to  the  amount  of  assets  of  the  company,  and 
the  probable  cost  and  profits  of  the  road  when  completed. 
This  is  not  a  breach  of  the  dut}'  in  question,  however  great 
the  damage  ensuing." 

Under  this  rule  of  law,  it  is  considered,  as  the  last 
example  indicates,  that  statements  of  value  b}'  the  owner 
of  propert}' ,  however  strongl}'  made,  are  not  breaches  of 
the  dut}'.^  Indeed,  it  is  held  by  some  of  the  courts  that 
misi'epresentations  of  what  an  article  or  a  tract  of  land 
cost,  or  what  it  has  been  sold  for,  or  of  a  sum  offered  for 
it,  do  not  involve  the  party  making  them  in  any  liabilitj'.^ 
And  the  court  of  one  State  has  gone  still  further  and  held, 
—  though  not  without  a  division  of  opinion  among  the 
judges,  —  that  a  statement  that  certain  lands  had  large 

^  See  Anderson  v.  Hill,  12  Smedes  &  M.  679 ;  Tuck  v.  Downing, 
70  111.  71. 

2  Anderson  v.  Hill,  supra.     The  question  in  this  case  arose  upon  a 
suit  to  enforce  payment  of  a  subscription  of  stock ;  but  this  would  , 
not  change  the  rule.  y 

*-  3  Modbury  v.  Watson,  6  Met.  246, ••Ellis  v.  Andrews,  56  N.  Y.  83. 
"^  *  Mcdbury  r.  Watson,  supra;  Cooper  v.  Lovering,  100  Mass.  79; 
Martin  v.  Jordan,  60  Maine,  531  ^ishop  v.  Small,  63  Maine,  12. 


§  2. 1  DECEIT.  15 

deposits  of  oil  within  them,  and  were  of  great  vahie  for 
manufacturing  oil,  was  a  statement  of  opinion  merel}'.^ 
There  is,  however,  strong  authority  opposed  to  the  first 
of  these  two  propositions,  and  by  inference  to  the  second.^ 

There  is  ground,  therefore,  for  doubting  the  correct- 
ness of  the  above-stated  propositions  ;  and  this  ground  is 
strengthened  by  the  fact  that  it  is  generally  conceded  in 
other  and  parallel  classes  of  cases  that  false  representa- 
tions of  the  elements  of  fact,  going  to  make  up  value,  are 
not  statements  of  opinion.^  For  example  :  The  defendant 
issues  a  prospectus  containing  favorable  but  false  state- 
ments of  the  pecuniary  condition  of  a  corporation,  in  order 
to  make  it  appear  desirable  to  the  plaintiff  (as  one  of  the 
public)  to  subscribe  to  the  stock  of  the  company.  This 
is  a  breach  of  the  defendant's  duty.^ 

Statements  concerning  the  pecuniary  condition  of  an 
mdividual  are  not  necessarily  statements  of  opinion,  and 
when  distinctly  and  specifically  made  may  be  breaches  of 
the  duty  under  consideration.  For  example  :  The  defend- 
ant says  to  the  plaintiff,  "  F.  is  pecuniarily  responsible. 
You  can  safely  trust  him  for  goods  to  the  amount  of 
£3,000."  This  is  a  definite  representation,  and  may  con- 
stitute a  breach  of  duty.^ 

Very  slight  expressions,  however,  are  considered  as 
sufficient  to  put  statements  of  this  character  on  the  foot- 
ing of  statements  of  opinion.  For  example  :  The  defend- 
ant, in  answer  to  inquiries  as  to  the  circumstances  and 
credit  of  a  thii'd  person,  says  to  the  plaintiff,  "/should  be 
willing  to  give  him  credit  for  any  thing  he  wanted."     This 

■^  1  Holbrook  v.  Connor,  60  Maine,  57G. 

-—2  Van  Epps  v.  Harrison,  5  Hill,  63 ;  Page  v.  Parker,  43  N.  H.  363; 

McFadden  v.  Eobinson,  35  Ind.  24;  Morclicad  v.  Eades,  3  Bush,  121. 
*^    8  Ellis  V.  Andrews,  56  N.  Y.  83,  86. 
■^    *  Campbell  v.  Fleming,  1  Ad.  &  E.  40 ;  Bedford  v.  Bagshaw,  4  Hurl. 

&  N.  638.     See  Bradley  v.  Poole,  98  Mass.  169. 

->  6  Pasley  v.  Freeman,  3  T.  R.  51 ;  s.  c.  Bigelow's  L.  C.  Torts,  1. 


16  DUTIES  OF  INDIVIDUALS  INTER  SE.      [Chap.  I. 

statement  cannot  safely  be  acted  upon  by  the  plaintiff. 
The  mere  fact  that  the  defendant  may  be  willing  to  give 
him  credit  does  not  necessarily  justify  the  plaintiff  in 
doing  so.^ 

The  principle  by  which  a  statement  of  opinion  is  con- 
sidered as  not  capable  of  amounting  in  law  to  a  breach  of 
duty  proceeds,  however  (with  reference  to  some  situations 
at  least) ,  upon  the  hypothesis  that  the  opinion  is  honestly 
entertained ;  and  in  such  situations,  if  the  opinion  be 
dishonestly  expressed,  the  statement  of  it  may  afford  a 
gi'ound  of  redress.  Such  a  situation  is  deemed  to  exist 
when  the  defendant  as  an  exj^ert  puts  forth  to  the  plain- 
tiff, in  the  form  of  opinion,  that  concerning  which  he  has 
positive  knowledge  at  variance  with  the  opinion.  For 
example :  The  defendant,  a  cattle  dealer,  desiring  to  sell 
cattle  to  the  plaintiff,  expresses  an  apparent  opinion  that 
the  cattle  will  weigh  900  lbs.  and  upwards  per  head.  But 
the  defendant  has  already  weighed  the  cattle,  and  knows 
that  their  average  weight  is  considerably  below  900  lbs. 
This  is  a  breach  of  dutv.^ 

The  representation  should  relate  to  a  present  or  past 
state  of  facts :  if  it  relate  to  a  matter  in  the  future,  it 
must,  in  the  nature  of  things,  be  uncertain.*  If,  however, 
the  statement  be  the  expression  of  an  intention,  and  it  be 
made  to  appear  that  the  defendant  in  truth  had  no  such 
intention  when  he  made  the  statement,  the  case  would 
(probably)  be  a  breach  of  the  duty  under  consideration.* 

The  allegation  of  only  part  of  the  truth,  with  a  view  to 
the  deception  of  the  plaintiff,  falls  within  the  same  prin- 

1  Gainsford  v.  Blackford,  7  Price,  544. 

2  Birdsey  v.  Butterficld,  34  Wis.  52.  See  Picard  v.  McCormick, 
11  Mich.  G8;  Kost  v.  Bender,  25  Mich.  515^  Pike  v.  Fay,  101  Mass.  134. 

*  See  Jordan  v.  Money,  5  H.  L.  Cas.  185 ;  Citizens'  Bank  v.  First 
Nat.  Banli,  Law  R.  6  H.  L.  352,  360;  Pedrick  v.  Porter,  5  Allen,  324. 
•"  *  Compare  Kimball  v.  Minix,  Ins.  Co.,  9  Allen,  540.  See  also  Paul! 
V.  Halfertj,  03  Penn.  St.  46. 


§  21  DECEIT.  17 

ciple,  and  may  be  a  breach  of  the  dut}'  under  considera- 
tion equall}'  with  a  statement  of  that  which  is  false  in  toto} 
For  example :  The  defendant,  being  desirous  of  pui'chas- 
ing  certain  stock  of  the  plaintiff  (a  lady) ,  of  the  value  of 
which  he  knows  her  to  be  ignorant,  tells  her  of  a  fact  cal- 
culated to  depreciate  the  value  of  the  stock  ;  but  he  omits 
to  disclose  to  her  other  facts  within  his  knowledge  which 
would  have  given  her  correct  information  on  the  subject. 
The  other  elements  of  the  breach  of  dut}-  being  present, 
this  is  deemed  a  tortious  misrepresentation.^ 

The  false  representation  which  may  be  treated  as  a 
breach  of  the  duty  must,  however,  have  been  material ; 
that  is,  it  must  have  been  one  without  which  the  action 
taken  to  the  plaintiff's  detriment  would  not  have  been 
likel}'  to  follow. 

This  rule  does  not  mean  that  the  particular  misrepre- 
sentation complained  of  must  have  been  the  sole  induce- 
ment to  the  plaintiff's  action  and  damage.  The  rule 
simply  means  that  the  representation  must  have  been 
a  sufficient  motive,  in  the  presence  of  other  inducements, 
to  cause  the  plaintiff  to  act  as  he  did.^ 

The  false  representation,  further,  should  be  of  matter 
of  fact,  and  not  of  matter  of  law ;  otherwise,  except  in 
cases  to  be  mentioned  presentl}',  there  is  no  breach  of  the 
duty  under  consideration.  A  representation  as  to  what 
the  law  will  or  will  not  permit  is  a  matter  upon  which  the 
part}'  to  whom  it  is  made  cannot  safely  rely.  If  he  should 
rel}^  upon  it,  the  courts  will  not  grant  him  redress,  though 
he  suffer  damage  thereby.'*  A  stockholder  in  a  corporation 
cannot  therefore  maintain  an  action  against  the  company 
for  misinforming  him  of  the  legal  effect  of  his  contract  of 
subscription.^ 

"^  1  Mallory  v.  Leach,  35  Vt.  156.  a  lb. 

8  McAleer  v.  Horsey,  35  Md.  439. 
"^  *  Upton  V.  Tribilcock,  91  U.  S.  45,  50.  6  Jb. 

2 


[ 


18  DUTIES   OF  INDIVIDUALS   INTER   SE.       [Chap.  L 

It  is  not,  however,  universall}^  true  that  a  misrepresen- 
tation of  the  law  may  not  be  a  ground  for  redress.  If  a 
person,  having  superior  means  of  knowing  the  law,  should 
fraudulently  profess  to  give  correct  information  concerning 
it  to  one  ignorant  thereof,  this  would  be  a  misrepresen- 
tation within  the  meaning  of  the  rule  at  the  beginning 
of  the  present  chapter.  For  example :  An  immigrant, 
ha^-ing  lately  arrived  from  abroad,  meets  an  old  citizen 
who  professes  familiarity  with  the  land  titles  of  the  coun- 
try, and  proposes  to  sell  the  former  land,  to  which  he 
assures  the  immigrant  his  title  is  vahd  in  law.  He  is 
bound  by  the  representation.^ 

§  3.  Of  the  Defendant's  Knowledge  of  the  Falsity 
OF  HIS  Representation  ;  that  is,  of  the  Scienter. 

Next  in  order  of  the  elements  necessarj'  to  constitute  a 
breach  of  the  dut}'  under  consideration,  is  the  defendant's 
knowledge  of  the  falsit}'  of  his  representation. 

The  general  proposition  of  law  in  this  connection  is,  that 
an  honest  statement  of  fact,  believed  to  be  true  by  the  de- 
fendant when  he  made  it,  though  made  with  a  view  to  its 
being  acted  upon,  and  justifying  action  upon  it  according 
to  the  conduct  of  prudent  men  (as  explained  in  the  preced- 
ing section) ,  will  not,  upon  turning  out  to  be  false,  create 
a  liability  in  the  defendant  to  respond  therefor  in  dam- 
ages." Fraud  (for  the  right  of  action  for  deceit  is  founded 
upon  evidence  of  fraud)  is  not  established,  so  far  as  this 
general  proposition  of  law  governs  the  rights  of  the  par- 
ties, without  proof  on  the  part  of  the  plaintiff  that  the 
defendant  knew  that  the  representation  was  false.  The 
law  raises  no  presumption  of  knowledge  from  the  single 
fact  per  se  that  the  representation  was  false :  there  must 

•^1  Moreland  v.  Atchison,  19  Tex.  303. 

"^2  Haycraft  v.  Creasy,  2  East,  92;  Collins  v.  Evans,  5  Q.  B.  820; 

Mahurin  v.  Harding,  28  N.  H.  128;  Case  v.  Boughton,  11  Wend.  106. 


§  3.]  DECEIT.  19 

be  something  further  to  establish  the  defendant's  knowl- 
edge.* And  proof  of  such  knowledge  is  termed,  in  tech- 
nical language,  proof  of  the  scienter.'^ 

There  are,  however,  as  intimated,  many  situations  in 
which  this  general  proposition  of  law  does  not  hold  good, 
—  situations  from  which  the  law  does  raise  a  presumption 
of  the  defendant's  knowledge  of  the  true  state  of  things 
concerning  which  he  has  made  the  false  representation. 
Or  more  accuratel}',  there  are  manj'  cases  in  which  the 
law  holds  the  defendant,  from  his  special  situation  towards 
the  facts,  bound  to  know  of  the  truth  of  his  representa- 
tion.    Such  cases  must  now  be  presented. 

These  cases  ma}-,  for  the  most  part,  be  embraced  under 
the  principle  that  every  man  is  supposed  in  general  to  know 
all  matters  pertaining  to  his  own  peculiar  circumstances, 
or  to  the  state  of  his  own  business.  If  the  defendant 
be  shown  to  have  made  a  false  representation  of  such  a 
matter,  ho  will  not  generally  be  permitted  —  as  against  an 
innocent  plaintiff  who  has  suffered  by  reason  of  such  false 
representation  —  to  say  that  he  made  it  honestly,  believ- 
ing it  to  be  true.*  For  example  :  The  defendant  states  to 
the  plaintiff  that  he  (the  former)  is  worth  $G,000.  The 
plaintiff  need  not  prove  that  the  defendant  knew  the  state- 
ment to  be  false.* 

One  of  the  most  common  class  of  cases  of  this  kind  is 
that  of  express  or  implied  representations  of  agenc}'.  It 
is  settled  law  that  if  a  person,  however  honestl}',  assume 

1  Bamett  v.  Stanton,  2  Ala.  181 ;  McDonald  v.  Trafton,  16  Maine, 
225. 

2  From  the  old  term  (signifying  the  defendant's  knowlege)  used  in 
the  plaintiff's  declaration  when  pleadings  were  in  Latin. 

*"  8  Morse  v.  Dearborn,  109  Mass.  693.     See  Colien  v.  Wright,  8  El. 
&  B.  647 ;  Randall  t;.  Trimen,  18  Cora.  B.  786;  White  v.  Madison,  26 
N.  Y.  117,  124 ;  Jefts  v.  York,  4  Cush.  371 ;  Johnson  v.  Smith,  21 
Conn.  627  ;  cases  really  turning  upon  this  principle. 
'='  *  Morse  v.  Dearborn,  su/ira. 


20  DUTIES  OF  INDIVIDUALS  INTER  SE.       [Chap.  I. 

to  act  for  another  in  respect  of  a  matter  OA'er  which  he  has 
no  authority,  he  renders  himself  liable  to  the  person  whom 
he  has  thus  misled.^  Such  an  action  is  a  breach  of  his  duty 
to  the  latter  equally  with  an  intentional  misrepresentation. 
The  extent  of  his  authorit}-,  as  well  as  the  existence  of 
any  authority  at  aU,  to  act  for  the  supposed  principal  is 
a  matter  of  his  own  business,  with  which  he  is  bound  to 
fully  acquaint  himself.'^  For  example :  The  defendants, 
a  telegi-aph  company,  deliver  to  the  plaintiff  a  message 
never  sent  by  the  assumed  sender.  They  maj-  be  liable 
to  the  plaintiff  as  for  a  false  representation  of  their  author- 
it}'  to  deliver  the  message,  though  the  operator  who  trans- 
mitted it  innocently  misread  the  writing.' 

While,  however,  a  person  professing  to  be  an  agent  is 
liable  in  damages  in  case  he  does  not  possess  the  assumed 
authority ;  still,  if  he  honestly  and  fully  disclose  all  the 
facts  touching  the  supposed  authorit}',  he  cannot  be  treated 
as  having  violated  his  duty,  though  the  plaintift"  should 
honestl}'  suppose,  with  the  defendant,  that  such  facts  gave 
him  the  authority  in  question.*  No  false  representation 
has  been  made  ;  the  defendant  has  told  the  truth,  and  the 
plaintiff  has  drawn  his  own  inference  from  the  facts. 

Upon  the  same  presumption  that  a  man  knows  the  nature 
and  state  of  his  own  business,  it  might  possibi}'  follow  that 
a  managing  director  of  a  corporation  who  issues  or  author- 

'  See  the  authorities  just  cited. 

2  The  breach  of  duty  is  often  treated  as  a  breach  of  implied  war- 
ranty of  authority,  but  it  may  also  be  treated  as  a  case  of  deceit, 
redressible  by  an  action  ex  delicto.  "^lahurin  v.  Harding,  28  N.  H. 
128 ;  Noyes  v.  Lormg,  55  Maine,  408 ;  Indiana  R.  Co.  v.  Tyng,  63 
N.  Y.  653. 
"~   3  May  V.  Western   Union   Tel.  Co.,  112  Mass.  90.    The  law  in 
England  as  to  telegraph  companies  is  different.    Playford  v.  United 
—  Kingdom  Tel.  Co.,  Law  R.  4  Q.  B.  706.     But  the  principle  is  English, 
as  the  cases  above  cited  (p.  19,  note)  show. 
•»-  *  Newmann  v.  Sylvester,  42  Ind.  106. 


§  3.]  DECEIT.  21 

izes  the  issue  of  a  prospectus  containing  false  representa- 
tions of  the  condition  of  the  conipan}-,  likelj'  to  deceive  the 
public,  could  not  reply  to  a  demand  for  damages  by  one 
of  the  public  misled  by  the  prospectus  into  embarking  in  a 
rotten  concern,  that  he  believed  the  representations  made 
to  be  true.  But  the  authorities  do  not  go  so  far.  Clearly 
one  who  merely  allows  his  name  to  be  used  as  trustee  of 
a  corporation,  to  bolster  its  stock,  which  turns  out  to  be 
worthless,  is  not  liable  in  deceit.-'  Knowledge  by  him  of 
the  condition  of  the  company  must  be  proved.^ 

There  is  another  class  of  cases  not  wholly  unlike  the 
foregoing,  in  which,  by  inference  from  some  of  the  author- 
ities, the  plaintiff  in  an  action  of  deceit  ma}'  perhaps  be 
exempted  from  proving  the  scienter.  These  are  cases  of 
•representations  by  persons  who  have  made  a  specialty  of 
some  particular  department  of  labor  or  science,  or  profess- 
ing to  have  done  so,  claim  the  possession  of  peculiar  skill 
or  knowledge  therein,  and  an  ability  to  act  concerning  it  as 
experts.  It  is  probable  that  redress  may  be  obtained  in 
the  courts  against  such  persons  for  damage  sustained  by 
reason  of  false  representations  within  the  range  of  their 
specialty,  without  giving  proof  that  such  representations 
were  known  to  be  false,  in  so  far  as  they  consisted  in  the 
statement  of  specific  facts,  susceptible  of  actual  knowledge. 
If,  for  instance,  in  the  negotiations  for  the  sale  of  a  piece 
of  land  by  a  geologist,  the  vendor  should  positivel}-  but 
falsel}'  affirm  certain  substances  in  the  soil,  having  an  oily 
appearance,  to  arise  from  deposits  of  native  mineral  oil  in 
the  premises,  and  the  purchaser,  having  no  knowledge  on 
the  subject,  should  rely  upon  the  statements  made  as  those 
of  a  geologist,  it  would  not  (probably)  be  contrary  to  legal 
principles  to  hold  the  vendor  liable  for  the  damage  sustained 
m  the  purchase,  though  the  purchaser  could  not  prove  that 
the  representation  was  made  with  knowledge  of  its  falsity. 

—    1  Morgan  v.  Skiddy,  62  N.  Y.  319.  2  lb. 


22  DUTIES  OF  INDIVIDUALS  INTER  SE.       [Chap.  I. 

If,  however,  the  representation  be  not  of  specific  facts, 
capable  of  actual  knowledge,  it  matters  not  how  far  supe- 
rior in  skill  or  knowledge,  or  in  the  profession  thereof,  the 
part}'  making  the  representation  may  be  to  him  to  whom 
the  same  is  made  :  the  injured  party  cannot  recover  dam- 
ages without  proving  the  scienter.  For  example :  The 
defendant  falsely  represents  the  growth,  appearance,  and 
vitality  of  willow  cuttings,  and  the  plaintitf  relying  thereon 
as  the  statements  of  an  expert,  buys  a  quantity.  He  can- 
not recover  for  the  damage  sustained  without  pro%ang  the 
scienter,^ 

There  are  some  other  circumstances  under  which  a 
breach  of  this  duty  arises,  though  the  representation  is 
made  without  a  knowledge  of  its  falsitj-.  If  the  defend- 
ant made  the  representation  positively,  without  knowing 
whether  it  was  true  or  false,  he  cannot  be  excused  from 
liability  ;  since  the  positive  assertion  of  a  fact  is  by  plain 
implication  an  assertion  of  knowledge  concerning  such  fact.^ 
Hence,  if  (contrar}-  to  his  assertion)  he  had  no  knowledge 
about  the  fact,  he  has  asserted  for  true  what  he  knew  to  be 
false.  Such  a  representation  differs  not,  in  contemplation 
of  law,  from  a  false  statement  of  fact  made  by  a  partj'  who 
knew  the  true  state  of  things.^ 

Cases  like  this,  however,  must  be  distinguished  from 
cases  in  which  a  positive  statement  is  made  in  the  belief 
that  it  is  true,  when  such  belief  is  based  upon  informa- 
tion which  would  justify  it.  If,  under  such  circumstances, 
the  information  upon  which  the  representation  was  based 
should  turn  out  incorrect,  there  would  be  no  breach  of 
duty,    and    hence    no    liability.^      But   if  the   statement, 

"  1  Pike  V.  Fay,  101  Mass.  134. 

2  Preston  v.  Mann,  2-')  Conn    118,  120. 

8  Evans  v.  Edmonds,  13  Com.  B.  777,  786  ;  Beattie  v.  Ebury,  Law 
R.  7  H.  L.  102H^obdell  r.  Baker,  1  Met.  I'.t.S,  201 ;  Bennett  v.  Judson, 
21  N.  Y.  1.38 ;  Stone  v.  Covell,  2!)  Mieli.  .3.50. 

*  Brooks  V.  Hamilton,  15  Minn.  26 ;  Fairbault  v.  Sater,  13  Minn. 


§  4.]  DECEIT.  23 

though  believed  to  be  true,  be  based  upon  totallj'  inade- 
quate inlbrmation,  such  as  mere  rumors,  or  upon  no  infor- 
mation at  all,  the  contrary  is  true ;  and  for  the  reason 
above  stated,  that  positive  statements  imply  a  profession 
of  actual  knowledge. 

B}'  way  of  summarj',  the  doctrines  concerning  the  sci- 
enter maj-  be  thus  stated :  An  action  for  deceit  may  be 
maintained  (other  elements  present)  ;  (1)  for  a  false  rep- 
resentation, known  by  the  defendant  to  be  false ;  (2)  for 
a  false  representation  believed  to  be  true,  but  the  truth  of 
which  he  was  bound  to  know ;  (3)  for  a  false  representa- 
tion not  believed  to  be  either  true  or  false  ;  (4)  for  a  false 
representation  believed  to  be  true,  but  upon  no,  or  inade- 
quate, grounds.* 

§  4.  Of  the  Ignorance  of  the  Plaintiff,  and  his  Belief 
IN  THE  Truth  of  the  Representation. 

The  next  element  of  the  breach  of  duty  is  that  requir- 
ing the  plaintiff  to  have  been  ignorant  of  the  truth  of  the 
matter  concerning  which  the  representation  was  made,  and 
to  have  believed  that  it  was  true. 

Both  of  these  situations  must,  in  general,  be  true  of 
the  plaintirf":  he  must  have  been  ignorant  of  the  true  state 
of  things,  and  have  trusted  the  representation  of  them  as 
made  by  tlie  defendant.  He  must  have  been  deceived  ; 
and  to  render  the  defendant  liable,  the  plaintitf  must  have 
been   deceived   by   the  defendant.     If  he    (the  plaintitl) 

223,231;  Taylor  i'.  Leith,  26  Oliio  St.  428;  Botsford  v.  Wilson,  75 
111.  132. 

i  It  should  be  observed  that  innocent  material  misrepresentations 
will  furnisii  ground  in  almost  any  else  f oar .(^fc-jecting  to  the  enforce- 
uieni  of  a  contract  eHected  through  tlie  influence  of  them,  and  even  for 
a  rescission  of  the  contract;  but  tliis  is  commonly  upon  the  ground  of 
mistake,  and  not  upon  the  ground  of  Iraud  (deceit),  though  the  lan- 
guage of  the  cases  is  often  very  loose  aud  inexact  in  tnis  particular, 
bee  iiigelow,  lYaud,  pp.  61-03. 


24  DUTIES  OF  INDIVIDUALS  INTER  SE.       [Chap,  L 

had  notice  or  knowledge  ^  of  the  truth,  or  if  without  notice 
or  knowledge  thereof  he  acted  upon  independent  informa- 
tion, and  not  upon  a  belief  of  the  truth  of  the  defendant's 
representation,  he  is  in  the  one  case  not  deceived  at  all,^ 
and  in  the  other  is  not  deceived  by  the  person  of  whom  he 
complains.  And  the  burden  of  proving  such  facts  rests 
upon  the  plaintiff.^ 

Should  a  purchaser  of  property  therefore  make  investi- 
gation of  his  own  as  to  the  truth  of  representations  made 
by  the  vendor,  he  will  be  barred  from  alleging  that  the 
latter  made  false  representations.  But  more,  it  will  not 
be  allowed  the  purchaser  to  say  that,  aside  from  express 
misrepresentations,  the  vendor  concealed  facts  of  impor- 
tance to  the  purchaser ;  provided  he  did  nothing  to  pre- 
vent the  purchaser  from  making  as  ample  investigation 
as  he  chose.*  For  example  :  The  defendant,  vendor  of  a 
large  tract  of  land,  represents  the  estate  to  contain  only 
fifty  or  sixt}'  acres  of  untillable  soil,  and  the  plaintiff,  the 
purchaser,  before  the  sale,  examines  all  of  the  land  more 
than  once.  The  defendant  (under  the  circumstances)  is 
not  guilty  of  a  breach  of  duty  to  the  plaintiff,  thougli  it 
turns  out  that  the  estate  contains  three  hundred  acres  unfit 
for  cultivation.^ 

But  (besides  eases  such  as  these)  just  as  there  are  many 
cases  in  which  the  defendant,  though  in  fact  ignorant  that 
he  has  made  a  false  representation,  and  had  supposed  it 
to  be  true,  is  bound  to  know  the  facts,  and  may  therefore 
be  hable  to  the  plaintiff ;  so  there  are  many  cases  in  which 
the  plaintiff,  though  he  was  actually  ignorant  of  the  true 

'  There  may  be  notice  without  knowledge;  but  notice  has  the 
same  effect  as  knowledge. 

2  Ilagee  v.  Grossman,  31  Ind.  223,*Tuck  v.  Downing,  76  111.  71; 
Whiting  V.  Hill,  23  Mich.  399. 
""  8  Pasley  v.  Freeman,  3  T.  R,  51 ;  s.  c.  Bigelow's  L.  C.  Torts,  1. 

*  Halls  V.  Thompson,  1  Smedes  &  M.  443. 

*  Halls  V.  Thompson,  supra. 


§  4.]  DECEIT.  25 

state  of  facts  and  supposed  the  representation  to  be  true, 
is  considered  by  the  law  as  fixed  with  knowledge  of  the 
facts,  and  cannot  treat  the  conduct  of  the  defendant  as  a 
breach  of  his  legal  duty. 

The  first  case  to  be  noticed  under  this  aspect  of  the  law 
of  deceit  is  that  in  which  the  plaintifi",  having  the  means 
directly  at  hand  of  informing  himself  of  the  truth  of  the 
matter  in  question,  refuses  or  fails  to  make  inquiry  con- 
cerning the  same.  In  such  a  case,  the  plaintiff  is  consid- 
ered to  have  notice  of  the  true  state  of  facts ;  and  notice 
is  equivalent  to  knowledge. 

In  accordance  with  this  principle,  it  is  laid  down  as  a 
broad  proposition  that,  if  the  means  of  knowledge  be 
directly  at  hand  and  equally  available  to  both  parties,  the 
plaintifi^,  as  a  prudent  man,  must  be  deemed  to  have  availed 
himself  of  such  means,  and  hence  has  not  been  deceived 
by  the  defendant,  so  that  (unless  there  was  a  warranty 
b}'  the  defendant)  an  action  of  deceit  cannot  be  maintained 
against  him.  For  example  :  The  plaintiff  buys  a  quantity 
of  rubber  goods  from  the  defendant  at  his  shop  or  factory  ; 
the  goods  lying  at  hand  in  a  condition  for  ample  inspection 
or  testing.  The  plaintiff  cannot  afterwards  sa}'  that  the 
defendant  deceived  him  in  respect  of  the  quality  of  the 
goods,  unless  the  defendant  made  a  warranty  thereof.* 
Again :  The  defendant,  in  selling  to  the  plaintiff  a  manu- 
facturing establishment,  represents  it  to  have  a  waterfall 
of  about  fifteen  feet.  The  fall  is,  in  fact,  much  less  ;  but 
the  plaintiff  has  for  many  j-ears  been  one  of  the  joint  owners 
of  the  property,  and  has  had  ample  means  of  knowing  the 
truth,  having  at  one  time  united  in  conveying  the  prop- 
erty and  describing  the  extent  of  the  fall  of  water.  The 
defendant  is  not  liable.'* 

1  Ely  i;.  Stewart,  2  Md.  408. 

2  Salem  Rubber  Co.  v.  Adams,  23  Pick.  256.     See  Brown  v.  Leach, 
^107  Mass.  364;  Buck  v.  McCaughtry,  6  T.  B.  Mon.  221. 


26    ^         DUTIES  OF  INDIVIDUALS  INTER  SI'.       [Chap.  I. 

^)  If,  however,  the  plaintiff  was  prevented  from  making 
inspection  by  the  acts  or  arts  or  words  of  the  defendant, 
the  latter  is  guilty  of  a  breach  of  duty,  though  the  prop- 
erty might  have  been  easily  inspected.  Every  contracting 
part}',  when  not  in  actual  fault,  has  the  right  to  rely  upon 
the  express  statement  of  an  existing  fact,  the  truth  of  which 
is  known,  or  presumed  to  be  known,  to  the  other  contracting 
party  who  made  it,  and  is  unknown  to  the  party  to  whom  it 
is  made,  when  such  statement  is  the  basis  of  a  mutual  agree- 
ment. He  is  under  no  obligation  to  investigate  and  verify 
the  statement  to  the  truth  of  which  the  other  party  to  the 
contract,  with  knowledge  or  notice,  has  deliberately  pledged 
his  liiith.^  Indeed,  a  party  may  act  upon  the  express  repre- 
sentation of  another,  though  the  means  of  information  be 
fully  open  to  him  ;  ^  provided  such  representation  have  a 
natural  tendency  to  prevent  him,  as  a  man  of  prudence, 
from  making  further  inquiry.  For  example  :  The  defend- 
ant, the  vendor  of  land,  makes  to  the  plaintiff  false  repre- 
sentations concerning  his  title  to  the  land  in  question.  An 
examination  of  the  registry  of  deeds  would  show  the  truth 
of  the  matter.  The  plaintiff  may  rely  upon  the  express 
statements  of  the  defendant,  and  is  not  bound  to  examine 
the  registry  books.''  Again :  The  defendant,  in  selling  a 
patent,  makes  false  representations  to  the  plaintiff  as  to 
what  the  patent  covers.  The  plaintiff  may  rely  upon  these 
representations,  though  an  inspection  of  the  records  of  the 
patent  office  would  disclose  their  falsity.'* 

■^1  Mead  r.  Bunn,  32  N.  Y.  276, 280 ;  McOlellan  v.  Scott,  24  Wis.  81, 87. 
^  2  Matlock  V.  Todd,  19  Ind.  130. 

8  Parliam  v.  Randolph,  4  How.  (Miss.)  435;  Kicfcr  v.  Rogers,  19 
Minn.  32  ;«'IIolland  v.  Anderson,  38  Mo.  55.  This  is  true,  though 
there  has  been  no  eviction,  and,  by  most  of  the  authorities,  tliough 
the  defendant's  deed  contain  ^covenants  of  warranty.  Higelow, 
Fraud,  68.  In  the  absence  of  fraud,  however,  the  rule  would  be  dif. 
frrent.  lb.  p.  30. 
—  *  David  V.  Park,  103  Mass.  501. 


5  4.]  DECEIT.  27 

Wlien  the  defendant  induces  the  plaintiff  to  abstain  from 
seeking  information,  mere  concealment  of  material  facts 
may  become  a  breach  of  duty ;  and  redress  will  not  be 
refused  in  such  a  case  merely  because  a  sharp  business  man 
might  not  have  been  deceived.  When  a  part}'  practises 
arts  designed  to  overreach  another,  and  the  latter  without 
fault  under  the  circmu stances  is  defrauded,  he  is  entitled  to 
recover  damages.^  Nor  is  the  rule  of  law  different  when 
the  defendant  suggests  examination  to  the  plaintiff,  but  in 
such  a  wa}-  as  to  indicate  that  such  a  step  would  be  quite 
unnecessary-.  For  example  :  The  defendant,  in  selhng  to 
the  plaintiff  property  at  a  distance,  suggests  to  the  plain- 
tiff that  he  go  and  look  at  the  property  "  as  their  judgment 
might  not  agree,  and,  if  not  satisfied,  he  would  pay  the 
plaintiff's  expenses,  but  if  satisfied  the  plaintiff  should  pay 
them  himself."  This  is  deemed  to  justify  the  plaintiff  in 
acting  upon  the  defendant's  representations  without  exam- 
ining the  propert}'.^ 

Not  even  the  subsequent  acts  of  accepting  and  pa^-ing  for 
goods  upon  delivery  will  bar  the  purchaser  of  redress,  though 
the  goods  were  open  to  his  inspection  at  the  time,  if  such 
acceptance  and  pa^-ment  were  procured  by  fraudulent  arti- 
fices on  the  part  of  the  vendor.  For  example  :  The  defend- 
ant, a  manufacturer  and  vendor  of  tobacco,  knowingly  uses 
damaged  tobacco  in  the  manufacture,  and  intentionally 
uses  boxes  of  green  lumber;  and,  while  the  tobacco  is 
manufacturing,  he  exhibits  to  the  plaintiff  from  time  to 
time,  in  order  to  mislead  him,  specimens  of  tobacco  as  of 
the  kind  he  (the  defendant)  is  supplying  the  plaintiff,  when 
in  fact  the  defendant  is  supplving  him  with  a  different  and 
inferior  kind.     Notwithstanding  acceptance  of  the  goods 

""  1  Swimm  v.  Bush,  23  Mich.  99  ;\  Starkweather  v.  Benjamin,  32 
Mich.  305;  Roseman  v.  Canovan,  43  Cal.  111. 
«-a  Webstar  i-.  BaUey,  31  Mich.  36. 


28  DUTIES  OF  INDIVIDUALS  INTER  BE.       [Chap.  I 

and  pa^inent  for  them,  the  plaintiflf  is  entitled  to  damages 
against  the  defendant.^ 

Even  though  a  party  sell  at  the  risk  of  the  purchaser, 
he  will  not  be  permitted  to  practise  fraud  upon  him  ;  and, 
if  he  do,  he  will  be  liable  as  for  a  breach  of  his  legal  duty 
to  the  purchaser.  For  example :  The  defendant,  in  the 
course  of  selUng  a  horse  to  the  plaintiff,  tells  him  that  the 
horse  has  the  distemper.  The  plaintiff  repUes  that  "he 
does  not  mind  the  distemper,  but  a  glandered  horse  he 
would  not  have  at  all."  The  sale  is  made,  and  the  defend- 
ant, before  the  plaintiff  takes  away  the  horse,  tells  the 
plaintiff  he  must  take  the  animal  at  his  own  risk.  The 
plaintiff,  discovering  the  horse  to  have  the  glanders,  may 
sue  for  deceit.^ 

When  the  parties,  by  reason  of  physical  or  mental  infir- 
mity on  the  one  side,  or  of  the  fact  that  the  one  party  is 
in  the  occupation  or  management  of  the  other's  business, 
or  has  the  general  custody  of  his  bod}',  do  not  stand  upon 
an  equal  footing,  the  objection  to  a  suit  for  false  represen- 
tations, that  the  party  to  whom  they  were  made  was  neg- 
ligent in  not  making  inquiry  or  examination,  has  still  less 
force.  Examples  of  this  class  of  cases  may  be  readily 
found  in  the  case  of  transactions  with  aged  persons,  or  with 
cestuis  que  trust  hy  trustees,  or  with  wards  b}'  guardians. 

The  plaintiff,  when  standing  on  an  equalit}'  with  the 
defendant,  is  doubtless  bound  to  know  the  state  of  his  own 
business,  and  the  facts  relating  to  his  own  circumstances 
or  property,  just  as  truly  as  is  the  defendant.  This  sub- 
ject, however,  need  not  be  enlarged  upon  here,  as  it  has 
been  presented  with  sufficient  fulness  in  treating  of  the 
defendant  in  the  like  situation.' 

^1  McAvoy  V.  Wright,  25  Ind.  22.  An  act  does  not  amount  to  the 
waiver  of  a  wrong  unless  it  be  done  with  knowledge  or  notice  of  the 
wrong. 

2  George  v.  Johnson,  6  Humph.  30.  *  Ante,  pp.  19-21. 


§  4.1  DECEIT.  29 

A  person  in  the  full  possession  of  all  his  faculties,  and 
able  to  read,  is  bound  to  know  and  understand  the  con- 
tents of  an  instrument  executed  by  him,  or  in  his  posses- 
sion as  a  party  to  it,  unless  it  contain  technical  or  foreign 
terms,  and  he  has  been  misled  as  to  their  meaning  by  the 
opposite  part}".  Such  a  person  cannot,  therefore,  in  the 
absence  of  fraud,  say  that  he  did  not  read  an  instrument 
conferring  rights  or  imposing  duties  upon  him,  and  that 
the  other  party  falsely  stated  its  terms  to  him.^ 

A  person  who  cannot  read  should  require  a  contract 
about  to  be  signed  by  him  to  be  read  to  him ;  and  if  he 
do  not,  it  is  doubtful  if  he  can  complain  that  the  contents 
of  the  writing  were  falsel}^  stated  to  him.^  It  is  held,  how- 
ever, that  one  who  can  read  only  with  great  difficulty  may 
rely  upon  the  statements  of  the  opposite  party  as  to  such 
of  the  contents  of  a  printed  document  as  were  in  very 
small  t^-pe.^  But  it  should  seem  that  prudence  would 
require  the  plaintiff  to  have  insisted  upon  the  reading  to 
him  of  the  document  or  the  particular  passages  in  question, 
since  to  state  the  substance  of  the  contents  requires  the 
use  of  inference,  which  may  often  be  a  matter  of  the 
nicest  discrimination.  At  all  events,  it  seems  clear  that 
an  action  of  deceit  could  not  be  maintained  unless  the 
plaintiff  could  show  that  the  defendant  had  knowingly  and 
purpose^  misrepresented  the  contents  of  the  document. 

Cases  of  this  sort,  however,  are  to  be  distinguished  from 
those  in  which  a  person  is  by  trick  or  artifice  caused  to 

1  Rogers  v.  Place,  35  Ind.  577;  Bacon  v.  Markley,  46  Ind.  116; 
Hawkins  v.  Hawkins,  50  Cal.  558.  The  same  proposition  would  hold 
equally  true  if  a  question  should  arise  against  the  defendant  instead 
of  against  the  plaintiff,  whose  duties  are  now  more  particularly  under 
consideration.  But  it  is  apprehended  that  the  doctrine  commonly 
affects  the  plaintiff,  and  hence  it  is  considered  under  the  presetfl 
instead  of  the  preceding  section. 

*  Compare  Craig  v.  Hobbs,  44  Ind.  363. 
— »  Keller  v.  Equitable  Ins.  Co..  28  Ind.  170. 


30  DUTIES  OF  INDIVIDUALS  INTER  SE.      [Chap.  L 

sign  a  different  instrument  from  that  to  which  he  intended 
to  give  his  signature ;  as  where  one  paper  is  surrepti- 
tiously substituted  for  another.  The  doctrine  concerning 
the  reading  a  document,  or  the  requiring  it  to  be  read,  can 
have  no  appUcation  to  such  a  case ;  and  if  the  defrauded 
party  choose  to  treat  the  transaction  as  having  effected  a 
conti-act  (a  right  which  the  defrauded  part}',  and  he  alone, 
may  always  exercise) ,  it  is  clear  that  he  can  maintain  an 
action  of  deceit  for  the  vrrong  which  has  been  committed.^ 

§  5.  Of  the  Intention  that  the  Representation  should 
BE  acted  upon. 
As  to  that  element  of  the  breach  of  duty  under  con- 
sideration which  requires  the  plaintiff  to  prove  that  the 
defendant  intended  his  representation  to  be  acted  upon,  it 
is  to  be  obsei-ved  that,  while  the  rule  is  probabl}'  inflexible, 
its  force  appears  chieflj^  in  those  cases  in  which  the  decep- 
tion was  practised  with  reference  to  a  negotiation  with  a 
thu-d  person,  and  not  with  the  defendant.  In  cases  of  this 
kind,  an  instance  of  which  is  found  in  false  representations 
to  the  plaintiflf  of  the  solvency  of  a  third  person, ^  it  is 
plain  that  the  transaction  with  such  third  person,  though 
shown  to  have  been  caused  by  the  defendant's  false  repre- 
sentation, affords  no  evidence  of  an  intention  in  the  de- 
fendant that  the  representation  should  be  acted  upon  by 
the  plaintiflT.  It  would  be  perfectl}'  consistent  with  mere 
evidence  that  the  plaintiff  acted  upon  the  defendant's  mis- 
representation in  a  transaction  with  a  third  person,  that 
the  defendant,  though  he  knew  the  falsity  of  his  repre- 
sentation, did  not  know  that  the  plaintiff  was  about  to  act 
upon  it.  The  representation  might,  for  all  this,  have  been 
a  mere  idle  falsehood  ;  such  as  would  not  justify  any  one  in 
acting  upon  it. 

1  For  a  detailed  consideration  of  this  and  kindred  subjects,  see 
Bigelow,  Fraud,  73-81.  2  Ante,  p.  16. 


§  5.]  DECEIT.  31 

It  follows  that  where  a  party  complains  of  false  repre- 
sentations, whereb}'  he  was  caused  to  suffer  damage  in  a 
transaction  with  some  third  person,  it  devolves  upon  him 
to  give  express  evidence  that  the  defendant  intended  that 
he  should  act  upon  the  representation,  or  that  the  plaintiff 
was  justified  in  inferring  such  intention  ;  and  that  it  is  not 
enough  to  prove  that  the  misrepresentation  was  made  with 
knowledge  of  its  falsity.^ 

When,  however,  the  effect  of  the  false  representation 
was  to  bring  the  plaintiff  into  a  business  transaction  with 
the  defendant,  the  case  is  quite  different.  Proof  of  such 
a  fact  shows  at  once  the  intent  of  the  defendant  to  induce 
the  plaintiff  to  act  upon  the  representation ;  and  it  fol- 
lows that  express  evidence  of  an  intention  to  this  effect 
is  iinnecessar}-.  This  is  the  meaning  of  man}-  cases  which 
hold  it  not  incumbent  upon  the  plaintiff  in  an  action  for 
deceit,  after  proof  of  the  other  elements  of  the  breach  of 
dutj",  to  give  evidence  indicating  an  intent  to  deceive. 

The  principle  appears  most  frequently  in  cases  of  sales  ; 
the  rule  of  law  being,  that  if  the  plaintiff,  the  purchaser, 
establish  the  fact  that  the  defendant,  the  vendor,  knew 
that  his  representation  was  false,  it  is  not  necessary-  for 
the  plaintiff  to  give  other  evidence  to  show  that  the  de- 
fendant intended  to  mislead  the  plaintiff.  That  is  ah-eady 
proved.^  For  example :  The  defendant  sells  a  horse  as 
sound,  knowing  that  he  is  not  sound.  Further  evidence 
to  show  the  existence  of  an  intent  to  defraud  the  plaintiff 
is  not  necessary.' 

It  is  important  to  notice  that  in  one  class  of  cases  it  is 
not  necessarj'  that  it  should  appear  that  the  defendant 
should  have  intended  to  injure  the  plaintiff.  It  has  al- 
ready been  stated  that  a  person  honestly  professing  to 

1  See  Paslej  v.  Freeman,  3  T.  R.  51 ;  8.  c.  Bigelow's  L.  C.  Torts,  1. 

2  Collins  V.  Denison,  12  Met.  549;  Johnson  v.  Wallower,  15  Minn. 
474 ;  8.  c.  18  Minn.  288.  "^  ^  Johnson  v.  Wallower,  supra. 


32  DUTIES  OF  INDIVIDUALS   INTER   SE.       [Chap.  1 

have  authority  to  act  for  another  is  liable  as  for  fraud  for 
the  damages  sustained,  if  he  have  not  the  authority.' 
And,  in  such  cases,  it  is  obvious  that  the  representation 
may  have  been  made  for  the  benefit  of  the  plaintiff. '^ 

§  6.    Of  Acting  upon  the  Representation. 

,  It  is  fundamental  that  the  defendant's  representation 
should  have  been  acted  upon  by  the  plaintiff  to  his  injury 
to  enable  him  to  maintain  an  action  for  the  alleged  breach 
of  duty.'  Indeed,  fraudulent  conduct  or  dishonest}'  of  pur- 
pose, however  exphcit,  will  not  afford  a  cause  of  action 
unless  shown  to  be  the  very  ground  upon  which  the  plain- 
tiff acted  to  his  damage.*  The  defendant  must  have  caused 
the  damage. 

So  strong  is  the  rule  upon  this  subject  that  it  is  deemed 
necessary  that  the  damage  as  well  as  the  acting  upon  the 
representation  must  have  already  been  suffered  before  the 
bringing  of  the  suit,  and  that  it  is  not  sufficient  that  it  may 
occur.  For  example  :  The  defendant  induces  the  plaintiff 
to  indorse  a  promissory  note  before  its  maturity  by  means 
of  false  and  fraudulent  representations.  An  action  there- 
for cannot  be  maintained  before  the  plaintiff  has  been 
compelled  to  pay  the  note.^ 

A  person  who  has  been  prevented  from  effecting  an 
attachment  upon  property  by  the  fraudulent  representa- 
tions of  the  owner  or  of  his  agent  is  deemed  to  have 
suffered  no  legal  damage  thereby,  though  subsequently 
another  creditor  should  attach  the  whole  property  of  the 
debtor  and  sell  it  upon  execution  to  satisfy  his  own  debt.' 

1  Ante.  pp.  19,  20. 
*^2  See  Polhill  v.  Walter,  3  Barn.  &  Ad.  114. 

•^  6  Taslcy  v.  Freeman,  3  T.  K.  51 ;  8.  c.  Bigelow's  L.  C.  Torts,  1 ; 
"-Freeman  v.  Venner,  120  Mass.  424. 
—  *  Rutherford  v.  Williams,  42  Mo.  18. 
—  6  Freeman  i'.  Venner,  supra. 
^   •  Bradley  v.  Fuller,  118  Mass.  239. 


§  7.]  DECEIT.  33 

The  person  thus  deceived,  having  acquired  no  lien  upon  or 
right  in  the  property-,  cannot  lose  an}"  b}'  reason  of  the  deceit. 
The  most  that  can  be  said  of  such  a  case,  it  has  been  ob- 
served, is  that  the  party  intended  to  attach  the  property, 
and  that  this  intention  has  been  frustrated  ;  -^  and  it  could 
not  be  certainly  known  that  that  intention  would  have 
been  carried  out.^  If  the  attachment  had  been  already 
levied  and  was  then  lost  through  the  deceit,  the  rule  would 
of  course  be  different.^ 

It  must  appear,  moreover,  that  the  plaintiff  was  entitled 
to  act  upon  the  representation  ;  and  this  will  depend  upon 
the  intention  of  the  defendant.  The  representation  may 
have  been  intended  for  (1)  one  particular  individual  only 
(in  which  case  he  alone  is  entitled  to  act  upon  it) ,  or  (2)  it 
may  have  been  intended  for  several  or  for  many,  or  (3)  for 
an}'  one  of  a  class,  or  (4)  for  any  one  of  the  public.  In 
either  of  the  second  or  third  cases,  an}'  one  who  comes 
properly  within  the  number  or  class  intended,  or,  in  the 
fourth  case,  an}'  one  of  the  public,  will  be  entitled  to  redress 
for  any  damage  sustained  by  acting  upon  the  representa- 
tion.'' For  example  :  The  defendants  put  forth  a  prospec- 
tus to  the  public,  containing  false  representations  for  the 
purpose  of  selling  shares  of  stock  in  their  company.  The 
plaintiff,  as  one  of  the  public,  may  act  upon  the  representa- 
tions, and,  having  bought  stock  of  the  company,  recover 
damages  for  the  loss  sustained  thereby.^ 

§  7.    Of  Slander  of  Title  and  Trade-Marks. 

The  foregoing  presentation  of  the  law  supposes  that  the 
representation  was  made  to  or  for  the  plaintiff.     But  there 

"  1  lb. ;  Lamb  v.  Stone,  11  Pick.  527. 
""  '■'  Bradley  v.  Fuller,  supra.  ^  lb. 

•*-  *  Swift  V.  Winterbotham,  Law  R.  8  Q.  B.  244 ;  Peek  v.  Gurney," 
Law  R.  6  H.  L.  377. 

*  As  to  this  point  see  Bigelow,  Fraud,  90,  and  note, 
a 


/ 


34  DUTIES  OF  INDIVIDUALS   INTER   SE.       [Chap.  1 

is  another  class  of  cases,  with  several  branches,  in  which 
the  situation  is  different.  A  representation  may  be  made 
of  a  man  or  of  his  property  to  his  injur}-,  as  well  as  to 
him ;  still  this  class  of  cases  (probably)  stands  upon  the 
same  footing  as  those  which  have  been  under  considera- 
tion.^ 

False  representations  of  a  person  may  consist  either  (1) 
in  disparaging  his  credit,  or  the  title  to  his  property-,  or  his 
propert}'  itself,  or  (2)  in  attempts  to  personate  hmi  or  his 
badge  of  business.  The  subject  of  misrepresentations 
made  to  the  plaintiff  of  the  credit  of  a  third  person  has 
been  considered  ;  -  and  (in  principle)  there  is  no  difference 
between  such  a  case  and  that  of  misrepresentations  to  a 
third  person  of  the  plaintiff's  pecuniar}-  standing.  The 
representation  having  been  acted  upon  to  the  plaintiff's 
damage  by  the  person  to  whom  the  defendant  made  it,  the 
latter  is  liable  for  the  former's  loss. 

If  the  representation  relate  to  the  plaintiff's  title  to  prop- 
erty- or  to  the  quality  of  the  property  itself,  the  wrong  done 
is  termed  slander  of  title  ;  if  it  be  an  attempt  to  personate 
him  or  the  reputation  of  his  goods  in  business,  it  will  com- 
monl}-  be  the  case  of  an  infringement  of  his  trade-mark.^ 

In  the  so-called  action  for  slander  of  title,  it  devolves 
upon  the  plaintiff  to  prove  that  the  statement  of  the  de- 

»  See  Biffelow's  L.  C.  Torts,  54-59,  69-72. 

2  Ante,  pp.  15,  16. 

8  An  infringement  of  a  patent,  it  should  be  observed,  is  not  so 
mnch  an  attempt  to  obtain  tlie  benefit  of  another's  reputation  in 
business  as  to  make  and  vend  tlie  very  same  article,  to  do  which  an 
exclusive  right  lias  been  given  to  another.  There  is  no  necessary 
attempt  to  deceive  any  one  in  the  infringement  of  a  patent ;  and  the 
same  is  measurably  true  of  infringements  of  copjn-ights.  These  sub- 
jects, therefore,  do  not  belong  to  the  law  of  deceit.  An  invasion  of  a 
patent  or  a  copyright  is  simply  an  invasion  of  a  right  of  property, 
like  a  trespass  upon  real  estate.  Indeed  the  same  is,  to  some  extent, 
true  of  trade-marks.  Leather  Cloth  Co.  v.  American  Leather  Cloth 
Co.,  4  DeG.  J.  &  S.  137. 


§  7.]  DECEIT.  35 

fendant  was  made  with  actual  malice,^  and  that  it  has  been 
aceomjjauied  with  some  actual,  specific  damage.^ 

The  interpretation  put  upon  these  elements  b}'  the  au- 
thorities shows  that  the}-  are  substantially  equivalent  to 
the  corresponding  elements  of  the  ordinary  action  of  deceit. 
The  false  representation  (which  clearly  must  have  been 
material,  and  otherwise  of  the  nature  of  the  representation 
above  considered)  must  have  been  made  with  knowledge 
of  its  falsity  and  with  intent  to  deceive ;  this  being  the 
meaning  of  the  "actual  mahce"  above  mentioned.^  For 
example :  The  defendant  states  to  a  third  person  with 
whom  the  plaintiff  has  made  a  contract  for  the  sale  of  cer- 
tain lands,  that  "his  [the  plaintifi"s]  title  to  those  estates 
will  hereafter  sooner  or  later  be  contested.  At  the  time 
they  were  sold  Mr.  Y.  [the  plaintiff's  vendor] ,  he  was  not  in 
a  state  of  soundness  and  competenc}'  to  do  so."  The  de- 
fendant makes  this  statement  as  trustee  of  the  particular 
lands,  in  good  faith,  believing  it  to  be  true.  This  is  no 
breach  of  duty  to  the  plaintiff.^  The  same  case  would 
afford  an  example  of  the  necessity  of  proof  of  actual 
damage  by  supposing  that  the  plaintiff  had  not  been 
negotiating  for  the  sale  of  the  lands  at  the  time  of  the 
statement.* 

And  the  question  of  the  defendant's  liability  must  turn, 
further,  upon  the  evidence  as  to  whether  the  third  person, 
to  whom  the  defendant  made  the  false  statement,  was  de- 
ceived by  and  acted  upon  that  particular  statement.  If 
such  person  knew  the  truth  of  the  matter,  or  acted  upon 
other  information  regardless  of  the  defendant's  statement, 

1  Pater  v.  Baker,  3  Com.  B.  831,  868  ;VPitt  v.  Donovan,  1  Maulc  & 
S.  639;  McDanicl  i'.  Baca,  2  Cal.  326;  Stark  r.  Chitwood,  5  Ivans. 
141. 

■^  2  Malachy  v.  Soper,  3  Bing.  N.  C.  371.     See  Bigelow's  L.  C.  Torts, 
54-59. 
•^3  Pitt  V.  Donovan,  supra.  *  Malachy  v.  Soper,  supra. 


36  DUTIES  OF  INDIVIDUALS   INTER   SE.      [Chap.  I. 

the  latter  could  not  be  deemed  in  any  proper  sense  to  have 
caused  the  damage  of  which  the  plaintiff  complains.'^ 

With  regard  to  the  law  of  trade-marks  (using  this  as  a 
generic  term  to  cover  all  kinds  of  signs  and  badges  of  busi- 
ness) ,  similar  observations  are  to  be  made.  In  order  to 
sustain  an  action  of  deceit  for  a  breach  of  duty  b}^  the 
defendant  to  the  plaintiff  in  the  use  of  a  trade-mark,  it 
must  appear  (1)  that  the  defendant  knew  of  the  existence 
of  the  plaintiff's  mark  when  he  committed  the  alleged 
wrong,  (2)  that  he  intended  to  palm  off  the  goods  as  the 
goods  of  the  plaintiff,  or  to  represent  that  the  business 
which  he  was  carr^'ing  on  was  the  plaintiff's  business,  or 
business  of  which  the  plaintiff  had  a  special  patronage,  (3) 
and  that  the  public  were  deceived  thereby.^  For  example  : 
The  defendant  sells  a  medicine  labelled  ' '  Dr.  Johnson's 
ointment,"  —  a  label  which  the  plaintiff  had  previously 
used,  and  was  still  using  when  the  defendant  began  to 
make  use  of  the  same.  The  plaintiff  cannot  recover  with- 
out showing  that  the  defendant  has  used  the  label  for  the 
purpose  of  indicating  that  the  medicine  has  been  prepared 
by  the  plaintiff.^  Again  :  The  defendant  has  the  words 
"  Revere  House"  printed  upon  coaches  which  he  employs 
to  carr}^  passengers  from  the  railway  station  to  a  hotel  of 
that  name.  The  plaintiff  has  the  exclusive  right,  by  con- 
tract with  the  proprietor  of  the  hotel,  to  represent  himself 

-  I  See  Pitt  V.  Donovan,  1  Maule  &  S.  639;  Pater  v.  Baker,  3  Com. 
B.  831, 8G8 ;  AVren  v.  Weild,  Law  R.  4  Q.  B.  730;  Bigelow's  L.  C.  Torts, 
ut  supra.  ^  y  ^ 

—  2  Sykes  v.  Sykes,  3  Barn.  &  C.  541 ;  Marsh  r.  Billings,  7  Cush.  S^; 
Rodgcrs  V.  Nowill,  5  Com.  B.  109.  See  Bigelow's  L.  C.  Torts,  59-72. 
In  a  proceeding  for  injunctiun  it  is  riot  necessary  to  prove  the  defend- 
ant's knowledge  or  intent  to  deceive.  Simple  priority  of  use  of  the 
mark  is  enough.  See  Millington  v.  Fox,  3  Mylne  &  C.  338 ;  Bigelow's 
L.  C.  Torts,  70,  71. 

*^  *  Singleton  v.  Bolton,  3  Doug.  293.  This  supposes,  of  course,  that 
the  medicine  was  not  patented. 


5  7.]  DECEIT.  87 

as  entrusted  with  the  patronage  of  the  hotel  by  the  pro- 
prietor. The  defendant  commits  no  breach  of  duty  to  the 
plaintiff,  unless  he  so  makes  use  of  the  sign  upon  his  coaches 
as  to  indicate  that  the  proprietor  of  the  hotel  has  granted 
him  such  a  right  of  patronage.^ 

It  will  thus  be  seen  that  this  subject  differs  in  no  essen- 
tial particular  from  ordinar}^  deceit. 

•^  1  Marsh  v.  Billings,  supra. 


38  DUTIES  OF  INDIVIDUALS   INTER   SE.      [Ciiai-,  11 


CHAPTER  n. 

SLANDER  AND  LIBEL. 

§  1.   Introductory. 

Statement  of  the  duty.  A  owes  to  B  the  duty  to  forbear 
to  publish  defamation  of  him. 

OBSERVATIONS. 

1.  Language  or  representation  actionable  per  se  is  ac- 
tionable without  the  proof  of  special  damage  or  of  actual 
malice. 

2.  Legal  slander  or  libel  is  actionable  per  se. 

3.  The  term  "representation"  is  now  used  to  denote 
painting,  picture,  sign,  or  effig}'. 

4.  Slander  is  oral  defamation. 

5.  Libel  is  defamation  by  writing,  printing,  or  repre- 
sentation. 

6.  Publication  is  the  utterance  or  exhibition  of  defama- 
tion before  a  third  person  or  persons. 

7.  The  last  three  observations  are  intended  merely  for 
general  definition.  What  the  term  "defamation"  itself 
means  will  be  made  known  by  the  proposition  of  law  fol- 
lowing, and  the  consideration  of  its  parts. 

8.  Whenever  language  is  spoken  of  as  defamatory,  it  is 
to  be  understood  as  false. 

The  general  proposition  of  law  is,  that  the  above-stated 
duty  is  violated  b}'  A  by  the  publication  of  words,  lan- 
guage, or  representations  of  a  false  and  defamatory  char- 
acter concerning  B  in  either  of  the  live  following  ways : 


§  2.]  SLANDER   AND   LIBEL.  £9 

(1)  \vhore  A  iinpntcs  to  B  the  commission  of  an  indictable 
offence  involving  turpitude;  (2)  where  he  imputes  to  B 
the  having  a  contagious  or  infectious  disease  of  a  disgrace- 
ful kind  ;  (3)  where  he  makes  an  imputation  concerning  B 
in  respect  of  his  office,  business,  or  occupation;  (4)  where 
he  makes  an  imputation  concerning  B  tending  to  disinherit 
him  ;  (5)  where  the  defiimation  is  a  libel.  Each  of  these 
classes  of  defamation  must  be  examined. 

§  2.    Of  the  Interpretation  of   Language. 

Before  proceeding  to  the  consideration  of  any  of  these 
classes  of  breaches  of  duty,  it  should  be  observed  that, 
subject  perhaps  to  one  exception,  the  language  or  repre- 
sentation complained  of  is  to  be  understood  in  its  natural 
and  usual  significatiou,  when  brought  before  the  coiu't 
(judge)  for  interpretation,  and  in  the  signification  in  which 
tlie  persons  who  heard  or  read  or  saw  it,  as  men  of  ordi- 
nar}'  intelligence,  would  understand  it.  It  is  not  to  be 
construed  in  a  mUder  sense  {tniiiori  sensu)  merel}'  because 
it  is  capable  by  a  forced  construction  of  being  interpreted 
in  an  innocent  sense.  For  example  :  The  defendant  pub- 
lishes of  the  plaintiff  the  following  words  :  "  You  are  guilt}'- 
of  the  death  of  D."  This  is  an  imputation  of  the  commis- 
sion of  murder,  and  is  not  to  be  construed  mitiori  sensu? 

It  should,  however,  be  sufficiently  clear  that  the  impu- 
tation was  slanderous  or  hbellous  (according  to  its  nature) 
within  the  meaning  of  some  one  of  the  stated  five  classes. 
K  this  be  not  the  case  it  will  not  be  deemed  a  breach  of 
the  duty ;  and  this,  too,  whether  the  question  of  interpre- 
tation come  before  the  court  or  before  the  jur}'.  In  one 
case,  at  least,  the  interpretation  adopted  has  been  appar- 
enth'  contrary  to  the  understanding  of  men  of  ordinary 
intelligence  ;  and  that  is  where  an  imputation  is  made  of 
what  would  ordinarily  be  understood  as  perjury-,  but  the 

-^1  Peake  v.  Oldham,  1  Cowp.  27-5;  s.  c.  Bigelow's  L.  C.  Torts,  73. 


40  DUTIES  OF  INDIVIDUALS   INTER   SE.      [Chap.  II 

language  of  which  does  not  necessarily  import  perjiny  in 
the  legal  sense.  For  example :  The  defendant  pubHshes 
of  the  plaintiff  the  following  words:  "He  has  taken  a 
false  oath  against  me  in  Squii-e  Jamison's  court."  This 
is  deemed  not  to  be  an  imputation  of  the  commission  of 
perjury  ;i  the  term  "perjury"  signifying  the  taking  of  a 
false  oath  knowingly,  before  a  com-t  of  justice,  with  refer- 
ence to  a  cause  pending. 

It  follows  that  it  is  immaterial  whether  the  defamatory 
charge  be  affirmative  and  direct  or  indii-ect  so  as  to  be 
matter  of  inference  merely,  or  that  it  is  u-onical,  or  that 
it  is  made  in  allegory  or  hieroghphics  or  other  artful  dis- 
guise. It  is  enough  Uiat  the  charge,  criminating  in  law, 
is  understood  to  be  defamatory  by  those  to  whom  it  is 
addressed,  being  men  of  average  intelligence. 

§  3.    Of  the  Publication  of  Defamation  and  Special 
Damage. 

In  accordance  with  observation  6,  supra,  it  should  be 
noticed  that  defamation  is  not  published  when  addressed 
only  to  the  plaintiff.  That  is,  the  language  or  representa- 
tion cannot  in  such  a  case  be  actionable  per  se.  And  this 
is  true,  though  the  alleged  wa-ong  be  directly  followed  by 
great  dejection  of  mind  on  the  part  of  the  plaintiff,  and 
consequent  sickness  and  inability'  to  carry  on  his  usual 
vocation,  and  expense  attending  upon  his  restoration  to 
health  or  upon  the  emplo^anent  of  help  to  carry  on  his 
business.  For  example  :  The  defendant  says  to  the  plain- 
tiff, "  You  have  committed  adultery  with  F."  The  plain- 
tiff, a  farmer,  suffers  immediate  distress  of  mind  and  body, 
becomes  sick  and  unable  to  attend  to  his  work,  his  crops 
suffer,  and  he  is  compelled  to  emplo}'  extra  help  to  carry  on 

r-  1  Ward  V.  Clark,  2  Jolins.  10;  s.  c.  Bigelow's  L.  C.  Torts,  81. 
Tlic  offbiice  cliarged  should  amount  to  crime  in  contemplation  of  law, 
nuc  merely  in  the  understanding  of  the  heai'er. 


§  3.]  SLANDER  AND  LIBEL.  41 

necessaiy  work.    The  defendant  has  not  violated  any  legal 
duty  to  the  plaintiff,  and  is  not  liable  for  the  defamation.^ 

Indeed,  if  the  language  or  representation  complained 
of  be  not  actionable  per  se  (that  is,  if  it  be  not  actionable 
without  the  proof  of  some  special  damage) ,  the  fact  that 
the  publication  of  the  defamation  occurred  in  the  presence 
of  a  third  person  who  (by  authorit}')  reported  it  to  the 
plaintiff  with  the  foregoing  result,  does  not  make  the 
defanier  liable,  unless  actual  damage  followed. - 

This,  however,  proceeds  upon  the  ground  that  the  effect 
of  distress  merely  is  not  such  damage  as  the  law  requires 
when  the  defamation  is  not  actionable  per  se.  The  rule 
of  law  upon  this  subject  is,  that  defamation  not  actionable 
per  se  (that  is,  defamation  not  included  under  anj^  of  the 
five  above  heads)  ma}-  be  a  breach  of  duty  if  it  be  at- 
tended with  special  damage.  But  special  damage  (and 
damage  of  a  general  nature  as  well)  must  be  the  natural 
and  usual  result  of  the  wrong  complained  of,  just  as  effect 
follows  a  true  cause  ;  and,  in  relation  to  defamation,  it 
is  deemed  that  nothing  else  than  damage  resulting  from 
injury  to  character  comes  within  the  principle.^  Damage 
resulting  from  fear  of  injur}-  to  character,  or  from  wounded 
feelings,  is  not  alone  damage  to  character,  since  character 
can  only  be  injured  when  it  has  been  defamed  before  a 
third  person  ;  except  in  that  it  may  have  been  injured  in 
the  e^'es  of  the  defendant  himself:  but  for  this  the  defend- 
ant is  not  legally  hable. 

The  damage  complained  of  must  then  in  all  cases, 
whether  general  or  special,  have  been  sustained  through 

"^  ^  Compare  Terwilliger  v.  Wands,  17  N.  Y.  54,  63,  and  Wilson  v, 
Goit,  lb.  442,  which,  taken  together,  justify  the  examjile. 
*~  "^  Terwilliger  v.  Wands,  17  N.  Y.  54,  63,  reaffirmed  in  Wilson  v. 
Goit,  lb.  442,  and  overruling^ Bradt  v.  Towsley,  13  Wend.  253,  and 
Fuller  V.  Eenner,  16  Barb.  333.  -^ 

^  This  is  to  be  uiiJer.stonil  as  the  ground  commonly  taken,  how- 
ever difficult  it  may  be  to  sustain  it  in  logic. 


42  DUTIES   OF  INDIVIDUALS  INTER  SE.      [Chap.  IL 

the  action  of  a  tliird  person.  Special  damage  may  so 
result  in  several  ways,  so  as  to  make  the  publication  of 
defamation  actionable  when  it  would  not  be  actionable 
per  se,  as  b}-  the  loss  of  a  marriage.  For  example  :  The 
defendant  charges  the  plaintifl\  an  unmarried  female,  with 
unchastit}-  in  the  presence  and  hearing  of  C,  to  whom  the 
plaintiff  is  engaged  to  be  married.  C,  in  consequence  of 
the  charge,  immediately  terminates  the  engagement.  The 
defendant  is  liable  to  the  plaintiff.^ 

The  same  would  be  true  of  the  loss  of  the  consortium  of  a 
husband.^  The  same  would  also  be  true  of  the  refusal  to  the 
plaintiff  of  civil  entertainment  at  a  public  house. ^  So  of  the 
fact  that  the  plaintiff  has  been  turned  awa}'  from  the  house 
of  her  uncle,  and  charged  not  to  return  until  she  shall  have 
cleared  up  her  character  ;  *  and  so  in  general  of  the  loss  by 
the  plaintiff  even  of  gratuitous  hospitable  entertainment.'' 

The  special  peculiarity-  of  the  law  of  slander  and  libel 
arises,  however,  in  the  case  of  defamation  actionable  per 
s-e;  and  the  consideration  of  the  special  phases  of  such 
lefamation  will  now  follow.  But  let  it  be  again  observed, 
that  in  defamation  arising  under  anj'  of  the  heads  now  to 
be  separatel}"  examined,  the  plaintiff  establishes  the  breach 
of  dut}',  and  consequent!}'  his  right  to  recover,  without 
proof  of  actual  damage  or  of  actual  malice. 

§  4.     Of  the  Imputation  of  having  Committed  an 
Indictable  Offence  involving  Tukpitude. 

The  authorities  are  at  variance  concerning  the  nature  of 
llie  offence  tlie  false  imputation  of  having  committed  whicli 
is  a  breach  of  legal  duty.    It  is  held  by  many  of  the  courts 

-  1  See  Terwilligcr  v.  Wands,  17  N.  Y.  54,  60. 

~2  Lynch  v.  Knight,  9  II.  L.  Cas.  577. 

-«  Ohnsted  v.  IMiller,  1  Wend.  50G. 

-*  Williams  v.  Hill,  19  Wond.  305. 

'6  lb.;  Moore  o.  Meagher,  1  Taunt.  39. 


§4.]  SLANDKR   AND   LIBEL.  43 

that  unless  the  offence  charged,  Ije.sides  involving  turpitude, 
be  one  the  punishment  of  conviction  for  which  is  infamous, 
tlie  charge  does  not  come  under  tlie  head  now  under  con- 
sideration.^ That  is,  it  must  be  indictable.  And  by  such 
authorities  a  punisliment  for  crime  is  not  infamous  when 
it  is  named  in  the  same  category  with  the  punishment  of 
offences  of  a  comparatively  trivial  nature,  as  that  of  va- 
grants, beggars,  jugglers,  and  fortune-tellers.^  If,  then, 
the  offence  charged  be  classed  with  trivial  offences,  such  as 
those  mentioned,  the  imputation  of  having  committed  it, 
though  false,  is  not  by  these  authorities  actionable.  For 
example :  The  defendant  publishes  of  the  plaintiff  the 
words,  "  She  is  a  common  prostitute."  The  punishment 
of  this  offence  is  classed  with  the  punishment  of  vagrants, 
beggars,  and  fortune-tellers.  It  is  not  actionable,  there- 
fore, when  not  attended  with  special  damage.^ 

By  other  courts  this  rule  has  been  rejected,  and  the  fol- 
lowing adopted:  Whenever  an  offence  has  been  charged 
wdiich,  if  proved,  may  subject  the  party  to  a  punishment, 
though  not  ignominious,  which  would  bring  disgrace  upon 
him,  the  accusation,  if  false,  is  actional)le.''  That  is,  the 
offence  charged  need  not  be  indictable  to  support  an  action. 

It  is  generally  conceded,  however,  ^hat  it  is  not  neces- 
sary that  the  accusation  should  be  tha+  of  the  cornmission 

^1  Brooker  v.  Coffin,  5  Jolins.  188;  s  c.  Biprelnw's  L.  C.  Torts,  77  ; 
Andres  v.  Koppcnlieaver,  .3  v^erg.  &  R.  255;*Holt  v.  Scholifield,  G  T. 
R.  691,  G(U  ;  Odgers,  Slander,  54. 

2  It  should  rather  be  said  that  the  offence,  not  the  punishment,  is 
or  is  not  infamous  by  this  standard,  at  least  when  imprisonment  may 
be  imposed.  There  is  no  difference  in  kind  between  imprisonment 
for  one  montli  and  imprisonment  for  one  year. 

"  8  Brooker  v.  Coffin,  supra. 

V  *  INIiller  V.  Parish,  8  Pick.  .384.  ^  See  Frisbie  v.  Fowler,  2  Conn. 
707r]Meyer  v.  Schleichler,  29  Wis.  640.  Quare  as  to  the  effect  of  an 
accusation  of  this  kind,  which  should  show  that  the  punishment  had 
already  been  suffered.  The  degradation,  not  the  danger  of  punish- 
ment, is  generally  considered  a  test  of  liability.    See  p.  44. 


44  DUTIES  OF  INDIVIDUALS  INTEll  SE.      [Chap.  II 

of  a  high  crime.  The  false  imputation  that  the  plaintiff 
has  committed  a  misdemeanor  is  equally  a  breach  of  legal  • 
duty,  provided  it  be  an  act  involving  moral  turpitude.^ 
For  example  :  The  defendant  pubhshes  of  the  plaintiff  the 
words,  "You  have  removed  my  landmark,  and  cursed  is 
he  that  removeth  his  neighbor's  landmark."  The  plaintiff 
ma}'  mauitain  an  action  for  the  same.^ 

The  authorities  are  not  altogether  in  harmony  as  to 
whether  it  is  also  a  test  of  habihty  that  the  charge,  if  true, 
would  subject  the  object  of  it  to  punishment,  or  whether 
the  test  in  this  particular  is  the  degradation  involved  ;  but 
the  weight  of  authority  favors  the  latter  as  the  test,  and 
not  the  former.  Although,  then,  the  charge  show  that  the 
punishment  has  akeady  been  suffered,  and  do  not  render 
the  plaintiff  liable  to  indictment,  the  degTadation  involved 
in  the  (false)  accusation  renders  the  defendant  liable.* 
For  example  :  The  defendant  says  of  the  plaintiff,  "Robert 
Carpenter  [the  plaintiff]  was  in  Winchester  jail,  and  tried 
for  his  life,  and  would  have  been  hanged  had  it  not  been 
for  L.,  for  breaking  open  the  granary  of  farmer  A.,  and 
stealing  his  bacon."  The  defendant  is  liable.^  Again: 
The  defendant  says  of  the  plaintiff,  "  He  was  arraigned  at 
Warwick  for  steahng  of  twelve  hogs,  and,  if  he  had  not 
made  good  friends,  it  had  gone  hard  with  him."  The 
defendant  is  hable.^  Again :  Tlie  defendant  says  of  the 
plaintiff,  "He  is  a  convict,  and  has  been  in  the  Ohio  pene- 
tentiary."  The  plaintiff  is  entitled  to  maintain  an  action 
therefor,  the  words  being  false.® 

•- 1  Young  V.  Miller,  3  Hill,  21  ;i  Smith  v.  Smith,  2  Sneed,  473  ;*  Beck 

i;.  Stitzol,  21  Penn.  St.  522. 

—  2  Young  V.  Miller,  supra. 

^  8  Shipp  V.  McCraw,  3  Murph.  465;  Smith  v.  Stewart,  5  Barr,  372. 

*  Carpenter  v.  Tarrant,  Cas.  Temp.  Ilardw.  339.     The  words  were 
false.  * 

6  Halley  v.  Stanton,  Crok.  Car.  268.     The  words  were  false. 

0  Smith  V.   Stewart,  5  Burr,  372.     It  would  be  otherwise  if  the 
words  were  true.    Baum  v.  Clause,  5  Hillj  199. 


§  5.]  SLANDER   AND   LIBEL.  45 

§  5.    Of  the  Imputation  of  having  a  Contagious  or 
Infectious  Disease  op  a  Disgraceful  Kind. 

By  the  early  common  law,  a  charge  to  come  under  this 
head,  must  have  been  of  the  having  the  leprosy,  or  the 
plague,  or  the  syphilis.  At  the  present  time,  the  duty  has 
come  to  be  so  far  enlarged  as  to  require  the  forbearance 
from  publishing  false  accusations  concerning  another  of 
the  having  any  disease  of  a  contagious  or  infectious  nature 
involving  disgrace.  For  example :  The  defendant  falsely 
charges  the  plaintiff  with  having  the  gonorrhosa.  This  is 
actionable  per  se.^ 

This  doctrine  of  law  proceeds  upon  the  ground  that 
charges  of  such  a  kind  tend  to  exclude  a  person  from 
society ;  and  the  rule  requires  the  charge  to  be  made  in 
the  present  tense.  To  accuse  another  of  the  having  had  a 
disgraceful  disease  is  not  actionable  without  proof  of  spe- 
cial damage.  For  example :  The  defendant  says  of  the 
plaintiff,  "She  has  had  the  pox."  The  defendant  is  not 
Uable  though  the  charge  be  false,  unless  the  plaintiff  prove 
some  specific  damage.'^ 

A  false  charge,  however,  of  the  having  had  a  disgraceful 
disease  may  be  actionable  if  it  imply  an  offence  under  one 
of  the  other  heads  of  the  present  chapter.  The  commis- 
sion of  adultery  is  in  this  country  indictable,  and  a  false 
charge  that  a  person  has  committed  it  is  generally  held 
actionable  per  se.^  Hence  to  impute  to  a  man  falsely  the 
haAing  had  a  venereal  disease  from  connection  with  a 
married  woman  is  actionable  ;  but  that  proceeds  upon  the 
ground  that  the  offence  is  indictable. 

~-  1  Watson  V.  McCarthy,  2  Kelly,  57. 

•-   2  See  Carslake  v.  Mapledoram,  2  T.  R.  473 ;  s.  c.  Bigelow's  L.  C. 

Torts,  84. 

8  It  appears  to  be  otherwise  in  England.  *Ayre  v.  Craven,  2  Ad. 

&  E.  7.     Adultery  there,  however,  is  not  indictable,  but  punishable  in 

the  spiritual  court. 


46  DUTIES   OF   INDIVIDUALS  INTER   SE.     [Chap.  IL 

§  6.  Ok  ax  Imputation  affecting  the  Plaintiff  in  his 
Office,  Business,  or  Ocoupation. 

In  order  tliat  defamation  arising  under  this  head  alone 
should  be  actionable  per  se,  it  should  have  a  natural  ten- 
dency' to  injure  the  party  complaining  in  his  occupation. 
It  is  not  enough  that  it  may  possibly  so  injure  him.  If  it 
have  not  a  natural  tendencA*  to  injure  him  in  this  respect, 
that  is,  if  it  would  not  be  the  usual  effect  of  the  charge  to 
injure  tiie  plaintiff  in  his  occupation,  as  by  causing  removal, 
the  plaintiff  cannot  recover  without  proving  a  special  dam- 
age. For  example:  The  defendant  publishes  of  the  ])laintiff, 
a  clerk  to  a  gas-light  company,  the  words,  "  You  are  a  dis- 
grace to  the  town,  unfit  to  hold  your  situation  for  your 
conduct  with  harlots.  You  are  a  disgrace  to  the  situation 
you  hold."  The  plaintiff  cannot  recover  Avithout  proof  of 
actual  damage,  the  language  not  having  a  natural  tendency 
to  cause  the  plaintiff's  discharge  from  his  emploAnnent.^ 

Defamation  has  a  natural  tendency  to  injure  the  plain- 
tiff in  his  office,  business,  or  occupation,  within  the  mean- 
ing of  the  rule,  when  it  strikes  at  his  qualification  for  the 
performance  of  the  duties  of  his  situation,  or  when  it  al- 
leges some  misconduct  or  negligence  in  the  course  of 
transacting  these  duties.^  For  example :  The  defendant 
charges  the  plaintiff,  a  clergyman,  holding  the  office  of 
pastor  Qf  a  church,  with  incontinence.  This  ma}'  be 
ground  of  an  action.^  Again:  Tlie  defendant  says  of 
the  plaintiff,  a  lawyer,  the  words  haring  relation  to  the 
plaintiff's  professional  qualifications,  "He  is  a  dunce." 
This  may  be  treated  as  a  breach  of  the  defendant's  legal 
duty  to  the  plaintiff.* 

When  the  defamation  complained  of  does  not  show  on 

-  1  Lumby  i-.  Alklay,  1  Tyrwh.  217;  s.  0.  Bigclow's  L.  C.  Torts,  87. 
2  lb. 

«  Gallwey  v.  Marsliall,  9  Ex.  294. 
«  I'eard  v.  Jones,  Croke  Car.  382. 


§  6.]  SLANDER  AND   LIBEL.  47 

its  face  that  it  was  published  of  the  plaintiff  in  relation  | 
to  his  occupation,  this  must  be  made  to  appear ; '  though  | 
even  then,  as  has  been  stated,  the  defamation  will  not  be  < 
actionable  unless  it  had  a  natural  tendency  to  injure  the 
plaintiff  in  his  occupation,  in  the  sense  alrcad}'  explained. 
In  cases,  however,  in  which  the  imputation  is  alleged  to 
have  been  made  of  the  plaintiff  in  his  occupation,  when 
the  same  does  not  have  the  natural  tendency  mentioned, 
it  may  be  shown  by  the  plaintiff  that  the  defamation  icas  \ 
published  under  circumstances  wliich  bring  the  case  within 
the   rule   of   liabihty.      But   without   such   evidence,  the 
plaintiff*  must  fail.     For  example  :  The  defendant  charges 
the  plaintiff,  as  a  physician,  with  incontinence.    This  does 
not  imply  disqualification,  or  uecessaril}-  professional  mis- 
conduct ;   and,  without  evidence  connecting   the  imputa- 
tion with  the  plaintiff's  professional  conduct,  he  cannot 
recover.^ 

If  the  imputation  in  itself  come  within  the  rule  of  lia- 
bility under  this  head,  it  matters  not  that  it  was  published 
of  a  servant,  even  one  acting  in  a  menial  capacity'.  For 
example  :  The  defendant  utters  the  following  of  the  plain- 
tiff, a  menial  servant,  before  the  latter's  master,  ' '  Thou 
art  a  cozening  knave,  and  hast  cozened  tliy  master  of  a 
bushel  of  barley."  The  defendant  is  liable  to  the  plaintiff, 
the  imputation  l:)eing  false.* 

It  is  probably  actionable  to  impute  disqualification  of  a 
person  holding  a  mereh-  honorar}'  or  confidential  office, 
not  of  emolument.'*  It  certainl}^  is  so  to  impute  to  such 
a  person  misconduct  in  the  office.''  For  example  :  The 
defendant  says  of  the  plaintiff,  who  holds  a  pubUc  office 

•- 1  Ayre  v.  Craven,  2  Ad.  &  E.  7. 
2  lb. 

8  Seaman  v.  Bigg,  Croke  Car.  480. 
*  Onslow  V.  Home,  3  Wils.  186. 
»  Ik 


48  DUTIES   OF  INDIVIDUALS   INTER   SE.     [Chap.  U. 

of  mere  honor,  "You  are  a  rascal,  a  villain,  and  a  liar." 
This  is  a  breach  of  the  duty  under  consideration.  ^ 

In  all  cases  included  under  the  present  section,  it  is 
I  necessar}"  that  the  plaintiff  should  have  been  in  the  exer 
■  cise  of  the  duties  of  the  particular  office,  business,  or 
occupation  at  the  time  of  the  alleged  publication  of  the 
defamation.^  For  example :  The  defendant  sa3-s  of  the 
plaintiff,  who  had  been  a  lessee  of  tolls  at  the  time  re- 
ferred to  by  the  defendant,  "  He  was  wanted  at  T. ;  he 
was  a  defaulter  there."  The  words  are  not  actionable 
per  se.^ 

§  7.    Of  an  Iiviputation  tending  to  Disinherit  the 
Plaintiff. 

If  the  words  tend  to  impeach  a  present  title  of  the 
plaintiff,  the  action,  though  commonly  called  an  action 
for  slander  of  title,  is  not  properly  speaking  an  action  of 
slander :  as  has  already  been  stated,  such  a  case  is  simply 
an  action  for  deceit,  to  be  governed  by  the  rules  of  law 
prevailing  upon  that  subject.* 

Cases  of  actions  for  defamation  tending  to  defeat  an 
expected  title  are  rare,  and  appear  to  have  been  confined 
to  charges  unpeaching  the  legitimacy  of  birth  of  an  heir 
apparent.  Such  an  imputation  is  deemed  actionable  in 
England,  as  being  likely  to  cause  the  plaintiff's  disherison. 
For  example :  The  defendant  publishes  of  the  plaintiff, 
an  heir  apparent  to  estates,  the  words,  "Thou  art  a  bas- 
tard." The  defendant  is  liable  without  proof  of  special 
damage.^ 

1  Aston  V.  Blagrave,  Strange,  617. 

2  Bellamy  v.  Burcli,  IG  IMees.  &  W.  590 ;  Gallwey  v.  Marshall,  9 
Ex.  294. 

3  Bellamy  v.  Burch,  supra.  Some  of  the  old  cases  are  contra,  but 
they  were  overruled. 

*  See  ante,  p.  33. 

6  llumi)hreys  v.  Stanfield,  Croke  Car.  469. 


§  8.]  SLANDER   AND   LIBEL.  49 

§  8.  Of  an  Ijiputatiox  conveyed  by  "Whiting,  Printing, 
on  Repkesentation  ;  that  is,  of  Libel. 

The  four  preceding  sections  exhaust  the  possible  heads 
of  oral  defamation,  actionable  per  se ;  that  is,  of  slander. 
Libellous  defamation  may  also  be  conve3-ed  in  any  of  the 
four  ways  above  considered  ;  but  it  may  also  be  conveyed 
in  other  ways.  A  libel  is  a  censorious  or  ridiculing  writ- 
ing, print,  picture,  or  sign,  made  with  a  mischievous  intent 
towards  government,  magistrates,  or  individuals.^ 

The  law  of  libel  is,  therefore,  of  wider  extent  than  that 
of  slander.  Many  words  when  written  or  printed  become 
actionable  per  se  which,  if  they  had  been  orally  pubUshed, 
would  not  have  been  actionable  without  proof  of  actual 
damage.  And,  besides  these,  there  is  the  whole  class  of 
defamatoiy  representations  (picture,  effigy,  or  sign),  which 
in  their  nature  are  incapable  of  oral  publication.  The 
rule,  as  the  above  definition  implies,  is  that  the  publica- 
tion of  words  or  representations  which  tend  to  bring  the 
plaintiff  into  ridicule,  hatred,  or  disgrace,  is  a  breach  of 
duty,  though  there  might  have  been  no  liabihty  for  the 
same  had  they  been  orally  published.-  For  example  :  Tlie 
defendant  writes  and  publishes  of  the  plaintitf  the  follow- 
ing: "I  sincerely  pity  the  man  that  can  so  far  forget 
what  is  due  not  only  to  himself,  but  to  others,  who,  under 
the  cloak  of  religious  and  spiritual  reform,  li}i30criticalh', 
and  with  the  grossest  impurity,  deals  out  his  malice,  un- 
charitableness,  and  falsehoods."  The  plaintlflT  can  main- 
tain an  action  for  libel. ^  Again  :  The  defendant  prints  the 
following  of  the  plaintiff:  "Our  army  swore  terribly  in 
Flanders,  said  Uncle  Toby;  and 'if  Toby  was  here  now, 
he  might  say  the  same  of  some  modern  swearers.  The 
man  at  the  sign  of  -the  Bible  [the  plaintiff]  is  no  slouch  at 

^  1  Steele  v.  Southwick,  9  Johns.  214. 

"^2  Thorley  v.  Kerry,  4  Taunt.  355;  s.  c.  Bigelow's  L.  C.  Torts,  90; 
*"  Stone  V.  Cooper,  2  Denio,  299.  ^  Thorley  v.  Kerry,  supra. 

4 


50  DUTIES   OF  INDIVIDUALS  INTER  SE.     [Chap.  IL 

swearing  to  an  old  story."  The  imputation,  being  false, 
is  libellous,  though  not  importing  perjur^-.^  Again :  The 
defendant  prints  the  following  of  the  plaintiff:  "Mr. 
Cooper  [the  plaintiff]  will  have  to  bring  his  action  to  trial 
somewhere.  He  will  not  like  to  bring  it  in  New  York,  for 
we  are  known  here,  nor  in  Otsego,  for  he  is  known  there." 
The  publication  of  this  language  is  deemed  libellous. ^ 

At  common  law,  no  immunity  is  conferred  upon  the 
proprietors,  publishers,  editors,  or  sellers  of  books,  news- 
papers, or  other  prints  for  the  publication  of  defamation. 
They  are  liable  for  the  publication  of  libellous  matter  in 
their  prints,  though  the  publication  may  have  been  made 
without  their  knowledge  or  against  their  orders.^  If,  how- 
ever, the  alleged  Hbel  were  of  such  a  nature  that  a  man  of 
common  intelligence  could  not  know  that  it  was  intended 
for  a  Hbel,  and  it  was  not  in  fact  known  that  it  was,  neither 
the  editor  nor  the  proprietor  of  the  printing  estabhshment, 
nor  the  seller  of  that  which  contained  the  language  or 
representation  complained  of,  would  be  Uable.* 

§  9.  Of  the  Truth  of  the  Chakge. 

The  truth  of  the  charge,  whether  it  was  made  orally  or 
by  printed  or  written  language,  is  at  common  law  a  good 
defence  to  an  action  for  the  publication  of  alleged  defa- 
mation, though  malicious  and  not  reasonably  believed  to 
be  true,  at  least  if  oral.*^  Evidence  of  such  a  fact  shows, 
indeed,  that  the  charge  is  not  defamatory.  A  person  has 
no  right  to  a  false  character ;  and  his  real  character  suffers 
no  damage,  such  at  least  as  the  law  recognizes,  from 
speaking  the  truth. 

^  1  Steele  V.  Southwick,  9  Johns.  214. 
~  2  Cooper  V.  Greeley,  1  Denio,  .347. 

^8  Dunn  V.  Hall,  1  Ind.  .344;*  Huff  i-.  Bennett,  4  Sandf.  120. 
^*  Smith  V.  Ashley,  11  Met.  367. 
6  Fobs  v.  Hildreth,  10  Allen,  76;  King  v.  Eoot,  4  "Wend.  113. 


§  10.]  SLANDER  AND  LIBEL.  51 

This  rule  goes  to  the  extent  of  justifying  a  pjirty  in 
publishing  of  another  the  fact  that  he  has  suffered  the 
penalt}^  of  the  law  for  the  commission  of  crime,  even 
though  he  maj'  have  been  pardoned  therefor  and  have 
since  become  a  good  and  respectable  citizen.  For  exam- 
ple :  The  defendant  pubhshes  of  the  plaintiff  the  statement 
that  the  latter  had  several  yesus  ago  stolen  an  axe.  That 
is  true,  though,  after  conviction  thereof,  the  plaintiff  was 
pardoned,  and  has  since  become  a  trusted  citizen  and  an 
office-holder.     The  accusation  is  deemed  justifiable  in  law.^ 

Belief  in  the  truth  of  the  accusation,  however,  is  not  a 
defence,^  though  it  is  provable  in  mitigation  of  damages.' 
And  this  is  equally  true  of  the  editors  and  publishers  of 
books,  newspapers,  or  periodicals,  as  of  other  persons.'' 

The  truth  of  effigj',  picture,  or  sign,  so  far  as  such  may 
relate  to  the  physical  person  of  the  party  intended,  and  not 
to  his  character,  is  (probably)  no  justification  of  a  mali- 
cious publication.  A  man  is  not  responsible  for  his  physi- 
cal peculiarities,  and  may  well  invoke  the  protection  of  the 
courts  against  one  who  will  maliciously'  parade  them  before 
the  public. 

§  10.  Of  Malice  and  Privileged  Communications. 

To  constitute  slander  or  libel,  malice  is  deemed  neces- 
sa,rj  ;  but  malice  in  this  connection  is  of  two  kinds,  malice 
in  law  and  malice  in  fact.  The  first  is  presumptive ;  the 
second  is  actual.  Malice  is,  indeed,  presumed  in  all  cases 
of  legal  slander  or  libel ;  but  the  presumption  may  generally 
be  rebutted,  and  then  the  plaintiff  can  recover  only  upon 
proof  of  actual  mahce.     The  effect  of  the  presumption 

-^  1  Baum  V.  Clause,  6  Hill,  199. 

^  2  Campbell  v.  Spottiewoode,  3  Best  &  S.  769 ;  Smart  v.  Blanchard, 
42  N.  H.  13?  ;  Udgers,  Slandur,  109. 

.^3  Smith  V.  Stewart,  5  Barr,  372  ;  Odgers,  Slander,  302,  589. 
*  Smart  v.  Blanchard,  supra  ;  Campbell  u.  Spottiswoode,  supra. 


52  DUTIES  OF  INDIVIDUALS   INTER   SE.      [Chap.  H. 

may  be  thus  stated :  The  publication  of  defamation  i8 
presumed,  prima  fncie^  to  have  been  done  of  mahce,  and 
justifies  a  verdict  for  the  person  defamed  without  further 
proof.  For  example  :  The  defendant  goes  to  the  plaintiff's 
relatives  and  falsely  charges  him  with  theft.  This  is  suf- 
ficient to  justify  a  verdict  for  the  plaintiff:  he  need  not 
offer  other  evidence  to  establish  malice.  Hence,  too, 
the  defendant  cannot  deny  that  the  plaintiff's  case,  as  here 
stated,  shows  that  the  charge  was  made  maliciously,  what- 
ever was  the  fact.^ 

It  follows  that,  if  the  defamation  were  not  published  upon 
a  justifiable  occasion,  the  defendant  will  not  be  allowed  to 
den}^  the  inference  of  malice  which  the  law  draws  there- 
from. He  will  not  be  permitted  to  say  that  he  was  not 
actuated  by  mahce  unless  the  occasion  on  which  the  pub- 
lication was  made  indicates  an  absence  of  malice.  The 
defendant  must  find  his  justification  in  the  circumstances 
of  the  pubhcation. 

There  are  then  occasions  or  circumstances  in  which  the 
publication  of  what  would  otherwise  be  actionable  defama- 
tion is  excused.  The  pubhcation  of  the  charge  or  repre- 
sentation in  such  cases  is  in  legal  language  said  to  be 
privileged  ;  the  charge  or  representation  itself  being  termed 
a  privileged  communication. 

Privileged  communications  are  of  two  kinds  ;  absolutely 

privileged  a.nd  prima  facie  privileged  communications.^    A 

'  eominunication  is  absolutely  privileged  when  the  fact  that 

it  was   published  with   actual,  provable   malice,  that   is, 

niaUce  in  fact,  is  immaterial,  not  affecting  the  excuse.     In 

1  Hooper  v.  Truscott,  2  Tiing.  N.  C.  457 ;  s.  c.  2  Scott,  072. 
"^'^  Hastings  v.  Lusk,  22  Wend.  410;  8.  c.  Bigelow's  L.  C.  Torts, 
- 121 ;  Shclfer  v.  Gooding,  2  Jones,  176.  The  Supreme  Court  of  tlie 
United  States  have,  obiter,  denied  the  existence  of  absolutely  privi- 
leged communications.  "^ White  v.  NichoUs,  3  How.  200.  But  the 
weight  of  authority  is  cmitra. 


§  10.]  SLANDER   AND  LIBEL.  53 

other  words,  a  communication  is  absolutely  privileged  when 
evidence  that  it  was  published  with  actual  malice  is  not 
admissible.  A  communication  is  prima  facie  pri\ileged 
when  evidence  on  the  part  of  the  plaintiff  is  admissible  to 
show  that  the  communication  was  published  with  actual 
malice.  In  the  former  case,  the  defence  (if  true)  is  a  per- 
fect one,  and  cannot  be  disturbed :  in  the  latter  case,  it  is 
perfect,  provided  evidence  of  malice  be  not  offered  by  the 
plaintiff. 

Under  the  head  of  absolutely  privileged  communications, 
there  are  several  classes  of  cases.  Among  them  one  of  the 
first  in  importance  is  the  case  of  remarks  by  counsel  in 
the  argument  of  a  cause  before  a  judicial  tribunal.  But 
the  privilege  of  an  attorney  to  utter  defamation  of  another 
in  the  argument  of  his  client's  cause  is  not  unlimited.  The 
defamation  must  have  been  uttered  under  circumstances  in 
which  it  was  relevant  and  pertinent  to  the  issue  before  the 
court.  If  it  was  relcA'ant  and  pertinent,  it  matters  not 
how  false  or  malicious  was  the  publication  ;  the  attorney  is 
not  liable.  If  it  was  not  relevant  and  pertinent,  no  protec- 
tion is  afforded  the  attorne3\  An  attorney  is  not  allowed, 
in  the  course  of  an  argument,  to  turn  aside  from  the  proper 
object  of  consideration  and  spread  defamation.  For  ex- 
ample :  The  defendant,  in  the  argument  of  his  own  cause, 
charges  the  plaintiff  with  perjury,  the  charge  not  being 
relevant  to  the  issue  before  the  court.  The  charge  is  not 
privileged.^ 

It  is  probable  also  that  the  language  complained  of  must 
have  been  uttered  in  the  course  of  actual  argument  in  court, 
and  that  otherwise,  however  relevant  and  pertinent  to  the 
cause  on  trial  it  may  be,  the  publication  is  not  privileged.^ 

The  same  absolute  protection,  under  probal)!}'  similar 
restrictions,  is  extended  to  the  allegations  contained  in  the 

^  1  Hastings  v.  Lusk,  22  Wend.  410 ;  s.  c.  Bigelow's  L.  C.  Torts,  121 
2  lb. 


54  DUTIES  OF  INDIVroUALS  INTER  SE.     [Ch^p.  U. 

written  pleadings  of  causes.^  So,  likewise,  of  affidavits 
made  in  the  course  of  a  trial, ^  even  though  the  persons 
making  them  be  not  parties  to  the  cause  ;  ^  and  so  of  the 
statements  of  a  witness  on  the  stand,^  and  of  the  judge 
sitting  in  the  hearing  of  the  cause, ^  or  of  a  coroner  holding 
an  inquest,^  and  finally  of  words  uttered  in  the  proper  dis- 
charge of  official  duty.' 

A  juror  is  under  absolute  protection  for  any  thing  he 
may  say  during  the  deliberations  of  the  jury  concerning 
their  verdict,  whether  his  language  be  pertinent  to  the 
cause  or  not,  if  he  acted  honestly,  in  the  behef  that  he 
was  properly  discharging  his  duty  as  a  juror.  For  ex- 
ample :  The  defendant,  during  the  dehberations  of  a  jury 
of  which  he  is  a  member,  held  in  the  jiuy  room,  concern- 
ing their  verdict  in  a  suit  brought  by  the  present  plaintiff, 
says  he  would  not  believe  the  plaintiff  under  oath,  and 
accuses  him  of  having  obtained  an  insurance  of  property 
by  fraud,  and  afterwards  of  committing  perjury  in  a  suit 
for  the  insurance  money.  That  trial  has  no  connec- 
tion with  the  case  before  the  jury,  but  the  defendant 
acts  honestly,  beheving  himself  to  be  in  the  discharge  of 
his  duty.  The  defendant  violates  no  legal  duty  to  the 
plaintiff.* 

f-  The  law  upon  this  subject  has  been  thus  (in  substance) 
summarized :  No  action  either  for  slander  or  Kbel  can  be 
maintained  against  a  judge,  magistrate,  or  person  sitting 
in  a  judicial  capacity  over  any  court,  judicial  or  military,® 

^  1  Henderson  v.  Broomhead,  4  Hurl.  &  N.  577. 

2  Garr  v.  Selden,  4  Comst.  91. 
~  8  Henderson  v.  Broomhead,  supra. 

*  Reevis  v.  Smith,  18  Com.  B.  126.  * 

6  Seott  V.  Stansfield,  Law  R.  3  Ex.  220. 
-  c  Thomas  v.  Churton,  2  Best  &  S.  475. 

'  Goodenow  v.  Tappan,  1  Ohio,  60, ■"'Dunham  v.  Powers,  42  Vt.  1. ' 

'  Dunham  v.  Powers,  supra. 
~9  JekyU  V.  Moore,  2  Bos.  &  P.  N.  R.  341, 


§  10.]  SLANDER  AND  LIBEL.  65 

recognized  by  and  constituted  according  to  law ;  nor 
against  suitors,  prosecutors,  witnesses,  counsel,  or  jurors, 
for  any  thing  said  or  done  relative  to  the  matter  in  hand, 
in  the  ordinar}^  course  of  a  judicial  proceeding,  investiga- 
tion, or  inquiry,  civil  or  criminal,  b}-  or  before  any  such  , 
tribunal,  however  false  or  malicious  it  may  be.^  -^ 

The  rule  of  law  by  which  defamatory  statements  made 
in  the  course  of  proceedings  in  the  judicial  tribunals  are 
piivileged  governs  all  statements  and  publications  made 
in  the  com'se  of  the  proceedings  of  the  Legislatm'e.  The 
occasion  is  deemed  to  afford  an  absolute  justification  for  the 
use  of  the  defamation,  so  long  as  it  relates  to  the  proceed- 
ings under  consideration.  No  member  of  either  house  of 
Congress,  or  of  a  State  Legislature,  is  liable  in  a  court  of 
justice  for  any  thing  said  in  that  house,  however  offensive 
the  same  may  be  to  the  feeUngs  or  injurious  to  the  reputa- 
tion of  another.^ 

This  privilege,  however,  is  absolute  only  within  the 
walls  of  the  house,  or  (probabl}')  of  such  other  places  as 
committees  of  the  Legislature  are  authorized  to  occupy-. 
It  is  not  personal,  but  local.  A  member  who  pubhshes 
slander  or  libel  outside  of  such  locality  stands  on  the  same 
footing  with  a  private  individual.  For  example  :  A  mem- 
ber of  the  Legislature  prints  a  speech  delivered  by  him  in 
the  House,  containing  defamatory  language  of  the  plaintiff. 
This  at  common  law  is  a  breach  of  dut}'.^ 

The  same  protection  is  extended  to  persons  presenting 
petitions  to  the  Legislature,  and  with  the  same  restriction. 
The  printing  and  exhibiting  a  false  and  defamatory  peti- 
tion to  a  committee  of  the  Legislature,  and  the  deliver}-  of 

1  Starkie,   Slander  and  Libel,   18-4   (4th  Eng.   ed.  by  Folkard), 
Blightly  varied. 
•-  '^  See  Rex  v.  Abingdon,  1  Esp.  226,  an  indictment  for  libel. 

8  See  Rex  v.  Abingdon,  supra , •-'Rex  v.  Creevy,  1  Maule  &  S.  273, 
'  Stockdale  v.  Hansard,  9  Ad.  &  E.  1. 


56  DUTIES  OF  INDIVIDUALS  INTER  SE.     [Chap.  II. 

copies  thereof  to  each  member  of  the  committee,  is  justifia- 
ble, unless  perhaps  the  petition  is  a  mere  sham,  fraudu- 
lently put  forth  for  the  purpose  of  defaming  an  indivitlual. 
But  a  publication  to  any  others  than  the  members  of  the 
committee,  or  at  anj^  rate  to  others  than  members  of  the 
Legislature,  removes  the  protection,  and  renders  the  author 
liable.i 

The  occasions  above  presented  are  the  only  ones  in 
which  the  publication  of  defamation  is  absolutely"  justified. 
The  occasions  which  afford  a  prima  facie  protection  to 
defamator}'  publications  must  now  be  considered. 

The  class  of  cases  of  defamatory-  communications  which 
fall  under  this  head  is  both  extensive  and  often  compli- 
cated. It  will  be  convenient  to  divide  it  into  two  branches  ; 
to  wit,  communications  pertaining  to  matters  of  a  public 
nature,  and  communications  pertaining  to  matters  of  a 
private  nature. 

Proceedings  before  church  organizations  for  the  disci- 
pline of  members  thereof  are  quasi  judicial,  and  afford 
protection,  prima  facie  in  kind,  for  the  utterance  of  de- 
famatory' language,  if  it  have  any  pertinency'  to  the  matter 
under  consideration.  For  example  :  The  defendant,  while 
on  trial  before  a  church  committee  for  alleged  falsehood 
and  dishonest}'  in  business,  sa3's  of  the  plaiutifT,  "  I  dis- 
charged him  for  being  dishonest,  —  for  stealing.  That  is 
the  cause  of  this  trouble."  The  defendant  is  not  liable  in 
the  absence  of  evidence  that  he  was  actuated  by  express 
malice.^ 

Literar}'  criticism  stands  upon  a  like  footing.  However 
severe  it  may  be,  however  unjust  in  the  opinion  of  men 
capable  of  judging,  so  long  as  the  critic  confines  himself 

—  1  See  Lake  i'.  King,  1  Saund.  131  b,  where  this  is  conceded;  Hare 
V.  Miller,  3  Leon.  138,  103. 

2  York  V.  Pease,  2  Gray,  282  ;  Farnsworth  v.  Storrs,  5  Cush.  412. 


§  10.]  SLANDER  AND   LIBEL.  57 

to  honest  criticism  of  another's  writings,  the  act  cannot  be 
treated  as  a  breach  of  legal  duty,  at  least  for  the  purposes 
of  an  action  for  defamation.  But  if  the  critic  turn  aside 
from  the  proper  purpose  of  criticism  and  hold  up  the 
author's  person  or  character  to  ridicule,  he  loses  his  pro- 
tection, and  becomes  liable  in  an  action  for  libel.^ 

The  criticism  of  works  of  art,  whether  painting,  sculp- 
ture, monument,  or  architecture,  is  (probably)  similarly 
privileged.  For  example  :  The  defendant  says  of  a  picture 
of  the  plaintiff,  placed  on  exhibition,  "  It  is  a  mere  daub." 
The  defendant,  at  least  if  honest  in  his  criticism,  cannot  be 
held  liable  to  an  action  for  defamation,  however  unjust 
the  criticism.'-^ 

Reports  of  trials  before  the  judicial  tribunals,  if  suffi- 
ciently full  to  give  a  correct  and  adequate  impression  of 
the  proceedings,  and  if  not  attended  with  defamatory  com- 
ments, are  prima  facie  privileged.  If,  however,  the  same 
should  be  malicious,  partial,  or  followed  b}-  comments  con- 
taining defamatory-  matter,  the  privilege  would  fail,  and 
the  publisher,  editor,  and  author  would  be  liable  for  any 
defamation  thereby  spread.  For  example :  Tlie  defend- 
ant prints  a  short  summary-  of  the  facts  of  a  certain  case  in 
which  the  plaintiff  has  acted  as  attorney'.  The  account  of 
the  trial  states  that  the  then  defendant's  counsel  was  ex- 
tremely severe  and  amusing  at  the  expense  of  the  present 
jjlaintiff.  It  then  sets  out  parts  of  the  speech  of  the  de- 
fendant's counsel  which  contain  some  severe  reflections  on 
tlie  conduct  of  the  plaintiff  in  the  trial  of  that  action.  The 
defendant  is  liable.^ 

An  abridged  report  of  a  trial  in  one  of  the  superior 

"  1  Carr  v.  Hood,  1  Canipb.  355,  note ;  Odgcrs,  Slander,  39. 

2  Thompson  v.  Shakell,  1  Moody  &  M.  187.- See  Gott  v.  Pulsifer, 
122  Mass.  235 ;  Odgers,  Slander.  39,  note. 
—  8  Flint  V.  Pike,  4  Barn.  &  C.  473. 


58  DUTIES  OF  INDIVIDUALS  INTER  SE.     [Chap.  II. 

courts  may,  however,  be  privileged  (probably)  if  it  be  fair, 
so  as  to  eonve}'  a  just  impression  of  what  took  place,  and 
be  free  from  objectionable  comments.^ 

The  objection  to  defamator}'  comments  applies  equally 
well  when  they  are  put  into  the  form  of  a  heading  to  the 
report.  For  example :  The  defendant  prints  an  account 
of  a  trial  in  which  the  plaintiff  was  involved,  heading  the 
same  "  Shameful  conduct  of  an  attorney',"  the  attorney 
referred  to  being  the  present  plaintiff.  The  pubhcatiou  is 
not  privileged.'^ 

The  editor  or  writer  maj',  however,  use  a  heading  prop- 
erl}'  indicative  of  the  nature  of  the  trial,  if  it  do  not 
amount  to  comment.  That  is,  the  subject  of  the  trial  may 
be  stated.  For  example :  The  defendant  prints  a  report 
of  a  trial  under  the  heading  "Wilful  and  corrupt  perjury." 
But  this  is  only  a  statement  of  the  charge  made  against 
the  plaintiff  at  the  trial.  There  is  no  breach  of  duty  to 
the  plaintiff.^ 

The  publication  of  ex  parte  proceedings  before  the  infe- 
rior courts  is  not,  in  this  country-,  privileged.*  The  privi- 
lege stops  with  the  right  of  reporting  the  transactions  of  the 
judicial  tribunals  concerning  parties  on  regular  trial  in  the 
ordinary  course  of  justice.  Nor  is  an}-  privilege  (at  com- 
mon law)  conferred  upon  the  proprietors,  editors,  or  pub- 
lishers of  the  public  prints  for  the  publication  of  defamatory 
matter  uttered  in  the  course  of  public  meetings  though  held 
under  authority  of  law  for  public  purposes.  For  example  : 
The  defendant  prints  an  account  of  a  public  meeting  of 
commissioners  of  a  town,  the  bod}^  acting  under  powers 
granted  by  statute ;  and  the  report  is  a  fair  and  truthful 

1  Turner  v.  Sullivan,  6  Law  T.  n.  s.  (Eng.)  130,  at  nisi  prius. 
~  2  Lewis  V.  Clement,  3  Barn.  &  Aid.  702. 
-  »  Lewis  V.  Levy,  El.  B.  &  E.  637. 

--  *  Cincinnati  Gazette  Co.  u.  Tiniberlake,  10  Ohio  St.  648;  Matthews 
V.  Beach,  6  Sandf.  256. 


§10]  SLANDER   AND   LIBEL.  69 

statement  of  what  occurred  at  the  meethig.  It,  however, 
contains  defamatory  language  uttered  concerning  the  plain- 
tiff at  the  meeting.     The  defendant  is  liable.^ 

It  does  not  affect  the  case  that  the  publication  relates 
to  a  matter  of  great  interest  to  the  public,  even  though 
the  public  be  at  a  point  of  unusual  anxiety  on  the  subject. 
For  example :  The  defendant  charges  the  plaintiff  in  a 
newspaper  with  treacher}-  and  l)ad  faith  in  regard  to  monej- 
received  by  him  to  obtain  the  manumission  of  a  fugitive 
slave  in  whom  there  was  great  interest  in  the  community. 
The  publication  is  not  privileged.^ 

The  right  to  publish  the  proceedings  of  the  courts  of 
justice  is  based  upon  a  supposed  general  utility  to  the 
public.  It  is  more  ob\'iousl3'  to  the  advantage  of  the 
public  that  true  accounts  of  the  proceedings  of  the  Legis- 
lature should  be  placed  before  the  people.  Upon  this  prin- 
ciple, therefore,  the  publication  of  the  proceedings  of  the 
Legislature  is  privileged,  though  they  contain  defamatory 
matter ;  though  the  privilege,  as  in  the  other  cases  men- 
tioned, will  not  cover  malicious  publications.  Without 
evidence  of  malice  the  protection  is  complete.  For  exam- 
ple :  The  defendant  publishes  a  true  report  of  a  debate  in 
the  Legislature,  upon  a  petition  presented  by  the  plaintiff 
for  the  impeachment  of  a  judge.  Defamatory  statements 
against  the  plaintiff  are  made  in  the  course  of  the  deliate, 
and  these  are  published  with  the  report.  The  defendant 
is  not  liable  in  the  absence  of  malice.^ 

Communications  made  to  the  proper  public  authorities, 
upon  occasions  of  seeking  redress  for  wrongs  suffered  or 
threatened,  in  which  the  public  are  concerned,  or  in  which 

"  1  Davison  v.  Duncan,  7  El.  &  B.  229. 

2  Sheckell  v.  Jackson,  10  Cush.  25. 
-  3  Wason  ?;.  Walter,  Law  R.  4  Q.  B.  73.    The  protection  in  this  case 
was  extended  also  to  comments  made  in  an  honest  and  fair  spirit. 


60  DUTIES  OF  INDIVIDUALS  INTER  SE.      [Chap.  II. 

the  party  making  or  receiving  the  communication  is  alone 
concerned,  are  presumed,  prima  facie,  to  have  been  made 
in  good  faith  and  without  malice,  unless  the  form  of  the 
communication  itself  show  the  contrary.  For  example : 
the  defendant  charges  the  plaintiff  with  being  a  thief,  the 
charge  being  made  before  a  constable  acting  as  such,  after 
the  defendant  had  sent  for  him  to  take  the  plaintiff  into 
custody.  The  defendant  is  not  liable  in  the  absence  of 
evidence  of  actual  malice.-^ 

Upon  the  same  principle,  statements  made  by  a  tax- 
payer and  voter  at  a  town  meeting,  held  to  consider  an 
application  from  the  assessors  of  the  town  for  the  use  of 
mone\"  for  a  particular  purpose,  ma}-  be  privileged  so  far  as 
the}'  bear  upon  the  matter  before  the  meeting,  though  they 
be  defamatory.  For  example :  The  defendant,  at  a  town 
meeting  held  on  application  of  the  town  assessors  to  con- 
sider the  propriety  of  reimbursing  the  assessors  for  ex- 
penses incurred  in  defending  a  suit  for  acts  done  in  their 
official  capacity,  falsely  charges  the  assessors  with  perjury 
in  the  suit.  Being  a  tax-pa^-er  and  voter,  he  is  not  liable 
to  anv  of  the  persons  defamed,  unless  shown  to  have  been 
actuated  by  malicious  motives.^ 

A  shnilar  protection  is  extended  to  persons  acting  under 
the  management  of  bodies  instituted  by  law,  and  having 
a  special  function  of  care  in  respect  of  the  interests  of  the 
public.  While  acting  within  the  limits  of  their  function, 
the}-  are  prima  facie  exempt  from  liability  for  defamatory 
publications  made.  For  example :  The  defendants,  trus- 
tees of  a  College  of  Pharmacy,  —  an  institution  incorpo- 
rated for  the  purpose,  among  other  things,  of  cultivating 
and  improving  pharmacy,  and  of  making  known  the  best 
methods  of  preparing  medicines,  with  a  view  to  the  public 

^~i  Robinson  v.  May,  2  Smith  (Eng.),  3. 
2  Smith  V.  Higgins,  16  Gray,  251. 


§  10.]  SLANDER  AND   LIBEL.  61 

welfare,  —  make  a  report  to  the  proper  officer  concerning 
the  importation  of  impure  and  adulterated  drugs,  falsely 
charging  the  plaintiff  with  having  made  such  importations  ; 
the  report  being  made  after  investigation  caused  b}-  com- 
plaints made  to  the  defendants  of  tlie  importation  of  such 
drugs.  The  defendants  are  not  liable  unless  the}'  acted 
with  express  malice  towards  the  plaintiff.^ 

The  conduct  of  public  officers  amenable  to  the  public 
only,  and  of  candidates  for  public  office,  is  a  matter  proper 
for  public  discussion.  According  to  English  authority,  it 
may  be  made  the  subject  of  hostile  criticism  and  animad- 
version, so  long  as  the  writer  keeps  within  the  bounds  of 
an  honest  intention  to  discharge  a  duty  to  the  public,  and 
does  not  make  the  occasion  a  mere  cover  for  promulgating 
malicious  and  false  allegations.  The  question  in  such 
cases  therefore  is,  whether  the  author  of  the  statements 
complained  of  has  transgressed  the  bounds  within  which 
comments  upon  the  character  or  conduct  of  a  public  man 
should  be  confined;  —  whether,  instead  of  a  fair,  reason- 
able, and  honest  comment  upon  the  subject,  the  occasion 
was  made  an  opportunity  for  gratifying  personal  vindic- 
tiveness  and  hostility.^  It  follows  that  when  the  public 
conduct  of  a  public  man  is  open  to  animadversion,  and  a 
person  in  commenting  upon  it  makes  imputations  on  his 
motives  which  arise  fairly  out  of  his  conduct,  he  is,  prima 
facie^  protected  from  an  action  at  law,  though  the  imputa- 
tions be  false. ^  But  this  view  has  not  widely  obtained  in 
the  United  States  ;  the  contrary  being  generally  laid  down, 
that  no  pri\alege  exists  to  attack  the  character  of  a  public 
officer  or  of  a  candidate  for  a  public  office.  To  justify 
an  attack  of  the'  kind  the  charges  must  be  shown  to  be 

•^  1  Van  Wyck  v.  Aspinwall,  17  N.  Y.  190. 
-  2  Campbell  v.  Spottiswoode,  3  Best  &  S.  776. 
^  See  Campbell  v.  Spottiswoode,  supra. 


62  DUTIES  OF  INDIVIDUALS  INTER  SE.     [Chap.  II. 

true.^    The  English  rule,  however,  appears  to  prevail  iii 
some  States.^ 

If,  however,  the  officer,  or  the  office  sought,  be  not 
subject  to  direct  control  by  the  public,  —  if  the  same  be 
subordinate  to  the  authoritj^  of  an  officer  having  a  power 
of  removal  over  the  incumbent, — then  (probably)  there 
exists  no  right  to  animadvert  upon  the  conduct  of  such 
subordinate  ofliccr  or  candidate  through  public  channels. 
The  proper  course  to  pursue  in  case  of  supposed  inca- 
pacity or  unfitness  of  tlie  party  for  the  position  would  be  to 
state  the  facts  to  the  superior  officer  alone,  and  call  upon 
him  to  act  accordingly. 

The  use  of  the  public  prints  is  sometimes  justifiable  to 
protect  a  person  against  the  frauds  or  depredations  of  a 
private  citizen  ;  and  when  this  is  the  only  effectual  mode 
of  protection,  persons  are  prima  facie  protected  in  adopt- 
ing it  even  against  innocent  men.  For  example :  The 
defendant,  a  baker,  employing  servants  in  delivering  bread 
in  various  towns,  inserts  in  a  newspaper  published  in  one 
of  the  towns  a  card,  stating  that  the  plaintiflT  "having  left 
m}'  emplo}',  and  taken  upon  himself  the  priWlege  of  col- 
lecting my  bills,  this  is  to  give  notice  that  he  has  nothing 
further  to  do  with  my  business."  The  communication  is 
privileged  in  the  absence  of  evidence  of  actual  malice.' 

Statements  made  to  the  public  in  vindication  of  charac- 
ter public!}'  attacked  are  privileged  if  bona  fide^  and  free 
from  malice,  at  least  if  made  through  proper  channels. 
For  example  :  The  defendant  publishes  a  newspaper  arti- 

i-Hamilton  v.  Eno,  81  N,  Y.  116 ;  Root  v.  King,  7  Cowen,  613  ;  s.  c. 
4  Wend.  113 -Sweeney  v.  Baker,  13  W.  Va.  158;  Curtis  v.  Mussey,rW 
G  Gray,  2G1.  -  See  Bailey  v.  Kalamazoo  Pub.  Co.  40  Mich.  251. 
-^2  Mott  V.  Dawson,  46  Iowa,  533;'Palmer  v.  Concord,  48  N.  H.  211. 
See  Odgers,  Slander,  40,  note. 
3  Hatch  V.  Lane,  105  Mass.  394. 


§10.]  SLANDER  AND  LIBEL.  63 

cle  containing  reflections  upon  the  plaintiffs  character,  in 
reply  to  an  article  b}'  the  plaintiff  assailing  the  defendant's 
character.  The  defendant  acts  honestl}',  in  defence  of 
himself.     The  communication  \b  prima  facie  privileged.^ 

The  like  rule  of  law  prevails  when  the  first  attack  is 
delivered  privately,  and  not  spread  befoi'e  the  public.  The 
part}'  assailed  maj'  reply  in  the  same  manner,  and  will  be 
protected  if  not  actuated  by  dishonest  or  malicious  mo- 
tives, though  his  repl}'  impute  defamation  to  the  other 
party.  And  such  reply  may  be  made  by  the  party's  agent 
as  well  as  by  himself.  For  example :  The  defendant,  an 
attorney,  writes  and  publishes  a  letter  in  vindication  of  the 
character  of  one  of  his  clients,  in  reply  to  certain  charges 
of  conspirac}^  preferred  and  published  against  the  latter. 
The  defendant's  letter  contains  defamator}'  charges  against 
the  plaintiff,  among  them  one  of  perjur}'.  The  defendant 
is  not  liable  if  he  wrote  the  letter  in  honest  vindication  of 
his  client's  character,  and  without  actual  maUce,  using  terms 
warranted  under  the  circumstances  in  which  he  wrote." 

It  remains  to  consider  the  case  of  prima  facie  privileged 
communications  concerning  matters  of  a  purely  private 
nature.  And  here  at  the  outset  a  general  distinction  in 
law  must  be  observed,  which  separates  the  class  of  cases 
now  to  be  noticed  from  those  above  considered,  or  at  least 
from  all  exce[)t  the  cases  relating  to  communications  in 
vindication  of  character.  With  the  exception  of  this  last 
class  of  cases,  all  of  the  foregoing  phases  of  privileged 
communications  show  that  the  defendant  may  justify  (in  a 
case  otherwise  proper  for  the  defence)  though  his  com- 
munication was  made  voluntaril}-,  that  is,  without  request 
from  another  having  an  interest  therein.  Indeed,  com- 
munications in  defence  of  character  are  made,  or  may  be 

^  O'Donoghue  v.  Hussey,  Irish  R.  5  C.  L.  124. 
2  Rex  V.  Veley,  4  Fost.  &  F.  1117. 


64  DUTIES   OF  INDIVIDUALS  INTER  SE.     [Chap.  II. 

made,  without  actual  request ;  but  the  first  attack,  espe- 
cially when  publicly  made,  may  properly  be  considered  a 
challenge  to  reply.  It  is  therefore  equivalent  to  a  request, 
and  the  rei)ly  cannot  be  considered  as  voluntarily  made- 
In  regard  to  tlie  other  cases  above  presented,  the  com- 
munication is  necessarily  voluntary  in  most  cases ;  and  a 
voluntar}-  publication  is  justified  on  the  ground  tliat  greater 
evils  would  be  apt  to  befall  societj'if  such  pubhcation  were 
to  be  declared  unlawful  than  are  likely  to  follow  b}'  per- 
mitting it. 

When,  however,  the  communication  I'clates  to  a  matter 
of  private  interest,  the  case  will  usually-  be  different.  Gen- 
erall}'  speaking,  it  will  not  be  justifiable  in  law  for  a  parti- 
te communicate  to  another,  without  request,  that  which 
turns  out  to  be  unfounded  and  defaraator}'  of  a  third  per- 
son. The  exceptions  to  this  proposition  arise  either  (1) 
from  the  circumstance  that  the  situation  of  the  part}-  pub- 
lishing the  defamation  towards  the  party  of  whom  it  is 
published  is  such  as  to  render  it  highly  improbable  that 
the  former  was  actuated  by  malicious  motives  towards  the 
latter,  when  the  communication  was  made  to  a  party  hav- 
ing an  interest  in  it ;  or  (2)  from  the  circumstance  that  the 
parties  sustain  a  relation  of  close  confidence  to  each  other, 
either  of  very  near  relationship  (by  blood  or  marriage)  oi' 
of  pecuniar}'  connection. 

Under  the  first  of  these  two  heads,  is  to  be  mentioned 
the  case  of  communications  made  by  a  master  (or  late 
master)  concerning  the  conduct  of  his  servant,  made  to  a 
neighbor  or  friend  about  to  take  the  servant  into  his  em- 
ploy. The  master  violates  no  duty  of  law  to  his  servant  in 
such  a  case  by  making  honest  statements  to  his  neighbor 
in  derogation  of  the  servant's  character,  in  an  unotficious 
manner,  and  with  an  honest  purpose  to  protect  his  neigh- 
bor.    For  example  :  The  defendant  having  discharged  his 


§10.] 


SLANDER   AND   LIBEL.  65 


servant  the  plaintiflf,  for  supposed  misconduct,  and  hear- 
ing that  he  was  about  to  be  engaged  by  a  neighbor,  writes 
him  a  letter,  informing  his  neighbor  that  he  has  discharged 
the  plaintiff  for  dishonesty,  and  that  he  cannot  recommend 
him  ;  the  charge  of  dishonesty  being  false,  but  believed  by 
the  defendant  to  be  true.  The  defendant's  act  is  frima 
facie  justifiable  ;  the  circumstances  not  indicating  any  offl- 
ciousness  or  undue  zeal  on  his  part.^ 

It  should  be  noticed  that  it  devolves  upon  the  defendant 
to  show,  not  only  the  existence  (at  the  time  or  before)  of 
the  relation  between  the  parties,  but  also  that  he  acted  in 
good  faith,  believing  that  his  communication  was  true.^ 
And  this  statement  applies  throughout  the  law  of  'prima 
facie  privilege. 

It  has  already  been  observed  that  the  defendant's  belief 
in  the  truth  of  the  charge  (and  it  might  be  added  his  hon- 
esty and  sincerity  in  making  it)  is  no  defence  in  cases  not 
of  privileged  communications.^ 

The  result  then  is,  that  in  cases  arising  under  the  first 
head  (such  as  cases  between  master  and  servant) ,  the  fact 
that  the  communication  has  been  voluntarily  made  does 
not  necessarily  prevent  the  charge  from  being  frima  facie 
privileged.  Its  effect  at  most  is  only  to  require  the  de- 
fendant to  give  strong  evidence  that  he  acted  honestly  and 
in  good  faith.*  But  of  course  the  plaintift'  is  at  liberty  to 
overturn  this  evidence  if  he  can,  by  showing  that  the  de- 
fendant was  in  fact  actuated  by  malicious  motives  in  making 
the  charge,  as  that  he  did  not  beUeve  the  charge  true. 

Under  the  second  of  the  heads  stated,  where  there  exists 
a  very  near  relationship,  or  a  pecuniary  connection  of  con- 

^  1  See  Pattison  v.  Jones,  8  Barn.  &  C.  578,  584,  Bayley,  J. 
—  2  Pattison  v.  Jones,  8  Barn.  &  C.  578  .--Dawkins  v.  I'aulet,  Law  R. 
6  Q.  B.  102;  Odgers,  Slander,  199. 

8  Ante,  p.  51.  *  See  Pattison  v.  Jones,  sufra,  Littledale,  J. 

6 


G6  DUTIES  OF  INDIVIDUALS  INTER  SE.      [Chap.  II 

fidence,  between  the  parties,  may  he  mentioned  the  case 
of  a  parent  admonishing  his  daughter  against  the  atten- 
tions of  a  particular  person,  who  is  falsel}'  charged  with 
the  counnission  of  a  crime ;  or  of  a  partner  advising  his 
copartner  to  have  no  partnership  dealing  with  another 
on  the  false  ground  that  he  is  a  swindler  and  thief.  It  is 
certainl}^  safe,  prima  facte,  to  volunteer  the  statement  of 
a  false  accusation  in  such  cases,  at  all  events  if  there  be 
evidence  that  the  defendant  acted  honestly  and  in  good 
faith. 

A  confidential  relation  b}'  pecuniary  connection  is,  how- 
ever, for  the  purposes  of  this  protection,  mucli  wider  than 
might  be  supposed  from  the  case  of  partners  last  men- 
tioned. A  confidential  relation,  within  the  scope  of  the 
protection  to  voluntary  communications  (probabl}-),  arises 
wherever  a  continuous  trust  is  reposed  in  the  skill  or  in- 
tegrity of  another,  or  the  property'  or  pecuniar}^  interest, 
in  whole  or  in  part,  or  the  bodily  custod}',  of  one  person, 
is  placed  in  charge  of  another.^  Besides  the  cases  above 
stated,  this  definition  will  cover  communications  made  by 
an  attorney  to  his  client  concerning  third  persons  with 
whom  the  client  is,  or  is  about  to  be,  engaged  in  business 
transactions;^  communications  made  to  an  auctioneer  of 
property  concerning  the  sale  by  persons  interested  in  the 
property ;  ^  communications  of  landlords  to  their  tenants 
imputing  immoral  conduct  to  some  of  the  inmates  of  the 
premises ;  *  and  many  other  cases  of  a  like  nature. 

Voluntary  communications  in  all  of  these  cases  are  justi- 
fiable on  the  ground  that  the  party  receiving  them  has  a 
right  to  expect  them  ;  and,  wherever  a  right  to  expect  the 

1  Bigolow,  Fraud,  100. 

2  See  Davis  v.  Kceves,  5  Irisli  C.  L.  79. 
•^8  Blackham  r.  Pugli,  2  Com.  B.  611. 

*  Kniglit  V.  Gibbs,  3  Nev.  &  M.  469. 


§  10.]  .  SLANDER  AND  LIBEL.  67 

communication  may  reasonabl}'  be  supposed  to  exist,  the 
communication  will  be  protected,  unless  it  was  prompted 
b}'  malicious  motives.  For  example  :  The  defendant,  attor- 
ne}-  of  another,  writes  to  the  latter  that  the  plaintiff,  the 
cHent's  debtor,  is  about  to  abscond  for  the  purpose  of 
defrauding  his  creditors,  the  charge  being  false.  The 
defendant,  prima  facie^  is  not  liable.^ 

Another  case  has  ah-eady  been  mentioned  in  which  vol- 
untary' communications  concerning  matters  of  a  private 
nature  are  deemed  justifiable  ;  to  wit,  where  this  is  the 
oul}-  adequate  mode  of  protecting  a  person  from  the  (sup- 
posed) frauds  or  depredations  of  another.^  Perhaps,  how- 
ever, this  case  would  be  covered  b}'  the  proposition  of  the 
paragraph  preceding. 

In  all  other  cases,  communications  voluntarih^  made, 
and  containing  defamation,  are  actionable  per  se.  For 
example  :  The  defendant  meets  a  third  person  in  the  street, 
who  is  a  mere  acquaintance,  and  falselj^  states  to  him,  with- 
out inquiry,  that  the  plaintiffs  bank  has  failed.  The  de- 
fendant is  guilty  of  a  breach  of  legal  duty  to  the  plaintiff.' 

On  the  other  hand,  it  i«  a  general  rule  of  law  that  com- 
munications bo?ia  fide  made,  in  answer  to  proper  inquiries, 
are  privileged.  But  a  communication  is  not  necessarily 
privileged  because  of  being  made  upon  request.  If  it 
should  be  unnecessarily,  or  perhaps  unnaturally,  defama- 
tory under  the  circumstances,  the  privilege  would  be  lost. 
Such  fact  would,  indeed,  show  that  the  writer  or  speaker 
was  actuated  b}-  express  malice,  and  w^ould  thus  destroy 
the  protection  which  was  actually  available  to  the  party, 
and  restore  to  the  plaintiff  his  right  of  redress.* 

1  Davis  V.  Reeves,  5  Irish  C.  L.  79. 

2  Hatch  V.  Lane,  105  Mass.  394  ;  ante,  p.  62. 

■^s  Sec  Bromage  v.  Prosser,  4  Barn.  &  C.  247;  s.  c.  Bigelow's  L.  C. 

Torts,  131. 

—  *  Fryer  v.  Kinnersley,  15  Com  B  x.  s.  422. 


68  DUTIES   OF  INDIVIDUALS  INTER  SE.     [Chap.  II. 

Again,  a  communication  made  upon  request  is  not  pro- 
tected unless  the  request  come  from  a  proper  person,  or  at 
least  from  one  whom  the  defendant  has  reason  to  suppose 
a  proper  person.  If  the  defendant  know,  or  have  good 
reason  to  know,  that  the  party  making  the  inquiry  has  no 
interest  in  the  matter  in  question  other  than  that  of  curi- 
osity, the  defendant  (probabl}')  is  not  justified  in  making 
the  communication.  Even  the  near  relatives  of  a  person 
interested  in  the  subject  of  the  communication  cannot  by 
request  afford  protection  to  every  one  to  publish  defama- 
tion of  another.  For  example  :  The  defendant,  formerly 
but  not  at  present  pastor  of  a  lady,  writes  a  letter  to  the 
lady,  on  request  of  her  parents,  warning  her  against  receiv- 
ing attention  from  a  certain  person,  the  letter  containing 
false  and  defamatory  accusations  against  him.  The  com- 
munication is  not  privileged.^ 

This  subject  of  privileged  communications  may  be  sum- 
marized by  the  following  proposition,  subject,  however,  to 
such  explanation  as  the  foregoing  presentation  suggests  : 

rA  communication  believed  to  be  true,  and  made  bona  fide 
upon  any  subject-matter  in  which  the  part}'  communicating 
has  an  interest,  or  in  reference  to  which  he  has  a  duty  to 
perform,  is  privileged,  if  made  to  a  person  having  a  cor- 
responding interest  or  duty,  although  it  contains  defama- 
tory  matter,    which,   without   such    privilege,    would   be 

\  actionable.^ 
I 

It  follows  from  this,  that  no  privilege  is  afforded  the 
more  repetition  of  defamation  ;    and  this  is  true  by  the 

^  1  Joannes  v.  Bennett,  5  Allen,  169.  Perhaps  the  communication 
would  luive  been  pri vileijod  had  it  come  from  the  lady's  present  pastor ; 
and  it  clearly  would  liave  been  protected  had  it  been  written  on  re- 
quest of  tlie  lady  herself. 

■^  2  Harrison  v.  Bush,  6  El.  &  B.  344;  Gassett  v.  Gilbert,  6  Gray,  94; 
■'  Joannes  v.  Bennett,  6  Allen,  169. 


§  10.]  SLANDER  AND  LIBEL.  69 

weight  of  authorit}',  though  the  party  repeating  it  give 
the  name  of  the  person  from  whom  he  received  it.  The 
repetition  of  the  language  is  generally  deemed  actionable 
to  the  same  extent,  and  doubtless  with  the  same  qualifica- 
tions, as  is  the  original  publication.-^  For  example  :  The 
defendant  says  to  a  third  person  concerning  the  plaintiff, 
''You  have  heard  of  the  rumor  of  his  failure,"  —  merelj'^ 
repeating  a  current  rumor  that  had  come  to  his  ears  that 
the  plaintiff  had  failed.  The  defendant  is  liable,  if  there 
was  no  such  relation  between  him  and  the  party  to  whom 
he  made  the  communication  as  would  cause  the  latter  to 
expect  a  communication  on  such  matters.^ 

It  must  be  understood  that  the  law  of  slander  and  libel 
applies  onl}'  to  defamation  in  pais  ;  that  is,  to  defamatory 
charges  not  prosecuted  in  a  court  of  justice.  If  the  defa- 
mation consist  of  an  accusation  prosecuted  in  court,  the 
accused  must  seek  his  redress  by  an  action  for  a  malicious 
prosecution ;  in  regard  to  which  the  right  to  recover  de- 
pends upon  quite  different  rules  of  law.  To  this  subject 
attention  will  now  be  directed. 

""  ^  De  Crespigny  v,  Wellesley,  5  Bing.  892  ;  s.  c.  Bigelow's  L,  C. 
Torts,  151 ;  Stevens  v.  Hartwell,  11  Met.  542 ;  Sans  v.  Joerris,  14  Wis. 
663 ;  Inman  v.  Foster,  8  Wend.  602.  Contra,  Haynes  v.  Leland,  29 
Maine,  233.  See  also  Jarnigan  v.  Eleraing,  43  Miss.  710 ;  Odgers, 
Slander,  162. 
"*-  2  Watkin  v.  Hall,  Law  R.  3  Q.  B.  396. 


70  DUTIES   OF  IJ^DIVIDrALS  INTER  SE.     [Chap.  III. 


CHAPTER   in. 

MALICIOUS    PROSECUTION. 

§  1.  Introductory. 
Statement  of  the  duty.    A  owes  to  B  the  duty  to  forbear 
to  institute  against  him  a  prosecution,  with  malice  and 
without  reasonable  ground,  for  an  offence  falsely  charged 
to  have  been  committed  by  B. 

OBSERVATIONS. 

1.  "When  a  termination  of  prosecution  is  referred  to 
without  further  explanation,  such  a  termination  is  meant 
as  will,  in  connection  with  the  other  elements  of  the  action, 
permit  an  action  for  malicious  prosecution. 

2.  Whenever  an  arrest  is  spoken  of,  an  arrest  for  crime 
is  meant  unless  the  term  is  used  in  connection  with  a  ci^dl 
action. 

In  order  to  maintain  an  action  for  a  malicious  prosecu- 
tion, three  things  are  deemed  necessary,  and  sometimes 
four,  to  wit  (1),  the  prosecution  complained  of  must  have 
terminated  before  the  action  for  redress  on  account  of  it 
is  commenced  ;  (2)  the  prosecution  must  have  been  insti- 
tuted without  reasonable  or  probable  cause  (ground)  ;  (3) 
it  must  have  been  instituted  maliciously ;  (4)  when  the 
charge  prosecuted  would  not  have  been  actionable  per  se, 
had  it  been  publislu'd  merely  in  pais,  actual  damage 
must  have  been  sustained  b}'  the  plaintiff.  And  it  devolves 
upon  the  plaintiff  to  prove  all  of  these  facts. 

Actions  of  this  kind  are  brought  for  malicious  criminal 
prosecutions  more  commonly  than  for  the  like  civil  prose- 


§  1.]  MALICIOUS    ritOSECUTION.  71 

cutions.  An  action  may  be  maintained,  however,  for  the 
malicions  prosecution  of  a  civil  demand,  —  at  least,  in 
many  cases.  It  is  clear  that  if  there  was  an  arrest  under  the 
civil  process,  the  case  comes  within  the  limits  of  the  law 
concerning  malicious  prosecutions;  and  it  is  no  less  dear 
that  this  branch  of  law  covers  cases  in  which  there  was  no 
arrest.  The  unsuccessful  prosecution  of  utterly  unfounded 
claims,  for  the  mere  purpose  of  harassing  another,  would 
(probabl}')  afford  ground  for  an  action  for  malicious  prose- 
cution. For  example  :  The  defendant  forges  a  promissory 
note,  payable  to  himself,  signing  the  plaintiff's  name  to  it. 
He  brings  suit  upon  it,  and  failing  by  reason  of  the  proof 
of  the  forgery,  he  is  sued  by  the  now  plaintiff  for  a  mali- 
cious prosecution.  The  defendant  is  (probably)  liable.^ 
Again  :  The  defendant  maliciously  and  without  reasonabk 
gi'ound  replevies  the  plaintiff's  goods.  Upon  the  termina- 
tion of  the  replevin  suit  in  favor  of  the  now  plaintiff,  he 
brings  an  action  for  malicious  prosecution.  The  defendant 
is  liable.^ 

It  appears  to  be  clear  that  the  action  is  maintainable 
whenever  the  pi'osecution,  whether  criminal  or  civil,  was 
totall}'  unfounded  to  the  knowledge  of  the  party  who  insti- 
tuted it,  and  the  suit  for  redress  is  brought  after  the  ter- 
mination of  the  prosecution  in  favor  of  the  then  defendant. 
In  regard  to  actions  for  civil  suits,  however,  the  want  of 
probable  cause  must  be  very  palpable.  Very  slight  grounds 
of  claim  will  justify  an  action.'' 

1  No  specific  authority  can  be  given  for  this  example,  but  its  cor- 
rectness may  be  inferred  from  tlie  hinguage  of  the  courts  in  Wren  n. 
Weild,  Law  R.  4  Q.  B.  700,  734,  and  Green  ik  Button,  2  Cromp.  IM.  & 
R.  707,  though  the  malicious  act  in  those  cases  did  not  consist  in 
bringing  suit.     See  also  Bicknell  v.  Dorion,  16  Pick.  478. 

'•2  See  O'Brien  v.  Barry,  10(j  Mass.  300.  The  plaintiff  failed  in 
this  case,  but  the  reason  was  that  he  liad  sued  before  the  termination 
of  the  action  of  replevin. 

2  See  Wren  v.  Weild,  supra ;  also  post,  p.  78. 


72  DUTIES   OF  INT)IVIDUALS  DCTER   SE.    [Chap.  m. 


§  2.  Of  the  Termination  of  the  Prosecution. 

The  action  for  a  malicious  prosecution  is  given  for  the 
preferring  in  court  of  o.  false  charge,  maliciously  and  with- 
out proper  grounds.^  And,  as  it  cannot  be  known  by  the 
most  satisfactory'  evidence  concerning  the  charge  whether 
it  be  true  or  false  before  the  verdict  and  judgment  of  the 
court  trying  the  cause,  it  is  deemed  to  be  necessary  for  the 
defendant  to  await  the  termination  of  the  proceeding  before 
instituting  an  action  for  malicious  prosecution.  Or,  as 
the  reason  has  more  commonl}'  been  stated,  if  the  suit  for 
the  alleged  malicious  prosecution  should  be  permitted 
before  the  prosecution  itself  is  terminated,  inconsistent 
judgments  might  be  rendered,  —  a  judgment  in  favor  of 
the  plaintiff  in  the  action  for  the  prosecution  and  a  judg- 
ment against  him  in  that  prosecution ;  and  judgment 
against  the  party  prosecuted  would,  it  is  deemed,  show 
that  the  prosecutor  had  reasonable  ground  for  his  conduct.'* 
The  judgment  would  therefore  show  that  the  prosecutor 
had  violated  no  duty  to  the  other  part}'. 

It  follows  directl}',  in  accordance  with  this  explanation 
of  the  rule  that  the  prosecution  must  have  terminated 
before  the  action  on  account  of  it  is  instituted,  that  the 
prosecution  must  have  terminated  with  judgment  in  favor 
of  the  party  prosecuted,  or  with  a  state  of  things  tanta- 
mount to  such  a  judgment.  And  this  is  true  even  though 
the  prosecution  take  place  in  a  proceeding  from  which 
there  is  no  appeal.     Conviction  in  such  a  case  is  equally 

1  An  action  may  be  maintained  in  certain  cases  for  the  manner  of 
prosecuting  a  true  charge ;  but  the  action  in  such  cases  is  not  for  the 
}>rosectUion,  and  the  rules  governing  it  are  not  the  rules  governing  an 
action  for  a  malicious  prosecution.     See  Ch.  6. 

^  Fisher  v.  Bristovir,  1  Doug.  215;  Parker  v.  Huntington,  7  Gray, 
37.  See  also  Cardival  t-.  Smith,  109  Mass.  158 ;  O'Brien  v.  Barry, 
100  Mass.  300 ;  Besebc  v.  Matthews,  Law  K.  2  C.  P.  G84. 


§  2.]  MALICIOUS  PROSECUTION.  73 

fatal  with  a  conviction  in  a  tribunal  from  the  judgment  of 
which  the  defendant  has  a  right  of  appeal ;  since  to  allow 
the  action  for  malicious  prosecution  would  be  (so  it  is 
deemed)  virtually  to  grant  an  appeal,  —  a  thing  conti'ary 
to  law  in  the  particular  case.  For  example  :  The  defend- 
ant procures  the  plaintiff  to  be  arrested  (falsely,  mali- 
ciously, and  without  probable  cause,  as  the  latter  alleges) 
and  tried  before  a  justice  of  the  peace  on  a  criminal  com- 
plaint of  assault  and  battery.  The  plaintiff  (then  defend- 
ant) is  convicted,  and  no  appeal  is  allowed  b^'  law.  The 
defendant  is  not  hable  for  malicious  prosecution.-^ 

The  explanation  given,  and  the  deduction  from  it  that 
the  prosecution  must  have  terminated  with  an  acquittal  of 
the  then  defendant,  are  not  in  fact  fully  carried  out.  An 
acquittal,  or  action  tantamount  to  an  acquittal,  is  a  bar  to 
a  second  prosecution  for  the  same  offence.  But  there  are 
several  classes  of  cases  in  regard  to  which  it  is  not  neces- 
sary that  the  proceedings  in  the  prosecution  complained 
of  should  have  gone  so  far  as  to  operate  as  a  bar  to  a  new 
prosecution  for  the  same  offence.  Indeed,  it  will  presently 
be  seen  that  the  explanation  and  deduction  are  applied 
only  to  civil  cases  in  w^hich  judgment  has  actually  been 
pronounced  and  to  indictments  prosecuted  to  trial  before 
the  petit  jury. 

It  is  not  necessary  to  the  tennination  of  a  civil  suit, 
such  as  will  permit  an  action  for  maUcious  prosecution, 
that  the  suit  should  have  gone  to  actual  judgment,  or  even 
to  a  verdict  by  the  jury.  A  civil  suit  is  entirely  within 
the  control  of  the  plaintiff,  and  he  may  withdraw  and  ter- 
minate it  at  any  stage ;  and,  should  he  take  such  a  step, 
the  suit  is  terminated.  For  example  :  The  defendant  (in 
the  suit  for  maUcious  prosecution)  writes  in  the  docket 
book,  opposite  the  entry  of  the  case  against  the  plaintiff, 

1  Besebe  v.  Matthews,  Law  R.  2  C.  P.  684. 


74  DUTIES  OF  INDIVIDUALS  INTER  SE.     [Chap.  Ill 

"  Suit  withcli-awn."     This  is  a  suiBcient  termination  of  the 
cause  for  the  purposes  of  the  now  plaintiff.^ 

It  is  not  necessary,  indeed,  that  the  party  should  make 
•a  formal  entry  of  the  withdrawal  or  dismissal  of  the  suit, 
in  order  (without  a  judgment  or  verdict)  to  terminate  it 
sufficiently  for  the  purposes  of  an  action  by  the  opposite 
part}-.  An}'  act,  or  omission  to  act,  which  is  tantamount 
to  a  discontinuance  of  the  proceeding  has  the  same  effect. 
For  example :  The  defendant,  having  procured  the  arrest 
of  the  plaintiff,  fails  to  have  the  writ  returned  into  court, 
and  fails  to  appear  and  file  a  declaration  at  the  return 
term.     The  plaintiff  may  treat  the  suit  as  terminated.^ 

If,  however,  the  (civil)  prosecution  went  to  judgment, 
the  judgment  must  have  been  rendered  in  favor  of  the 
defendant  therein,  in  order  to  enable  him  to  sue  for  mali- 
cious prosecution.  Judgment  against  the  defendant  would 
conclusively  estabUsh  the  plaintiff's  right  of  action :  it 
could  not,  therefore,  be  treated  as  a  false  prosecution,* 
though  it  might  have  been  attended  with  mahce  ;  unless, 
indeed,  it  was  concocted  in  fraud. 

If  the  prosecution  was  criminal,  the  situation  is  differ- 
ent. Such  a  proceeding  is  instituted  b}-  the  State,  and, 
when  bj'  indictment,  is  under  the  control  of  the  attorney- 
general,  or  other  prosecuting  officer:  it  is  never  under 
the  control  of  the  prosecutor.  He  has  no  authority  over 
it ;  and,  this  being  the  case,  he  cannot  be  bound  by  the 
action  of  the  prosecuting  officer.  Should  such  officer, 
therefore,  enter  a  dismissal  of  the  suit  before  the  defend- 
ant has  been  put  in  jeopardy,  this  act  gives  no  right  to  the 
prisoner  against  the  prosecutor.     The  course  of  proceed- 

1  Arundcll  v.  White,  14  East,  210. 

2  Cardival  v.  Smith,  109  Mass.  158. 

8  Or,  as  the  case  is  sometimes  put,  judgment  for  the  plaintiff 
would  show  that  he  had  probable  cause  for  the  prosecution,  a  point 
to  be  considered  hereafter. 


§  2.]  MALICIOUS  niOSECUTION.  75 

ing  was  not  arrested  by  the  prosecutor,  and  he  has  a  right 
to  insist  that  the  law  shall  take  its  regular  course,  and 
place  the  prisoner  in  jeopard}-,  before  he  shall  have  the 
power  to  seek  redress.  For  example :  The  defendant 
procures  the  plaintiff  to  be  indicted  for  arson.  The  prose- 
cuting officer,  failing  in  obtaining  evidence,  enters  a  nolle 
prosequi  before  the  jury  is  sworn.  The  prosecution  is  not 
terminated  in  favor  of  the  prisoner.^ 

If  the  prosecution  was  arrested  by  the  grand  jury's  find- 
ing no  indictment  wpon  the  evidence  before  them,  and  the 
consequent  discharge  of  the  prisoner,  this  is  an  end  of 
the  prosecution,  such  as  will  enable  him  (other  elements 
present)  to  bring  the  action  under  consideration.^  And 
the  same  is  true  when  the  prosecution  is  begun  by  com- 
plaint before  a  magistrate  who  has  jurisdiction  only  to 
bind  over  or  discharge  the  prisoner.  The  magistrate's 
entry  that  the  prisoner  is  discharged  entitles  him,  other 
elements  being  present,  to  bring  an  action.  And  this  is 
true,  though  the  prosecutor  withdraw  his  prosecution.  For 
example  :  The  defendant  prefers  against  the  plaintiff  a 
charge  of  forgery  before  a  justice  of  the  peace,  who  has 
authority  only  to  bind  over  or  discharge  the  prisoner. 
The  justice's  minutes  contain  the  following  entry :  "  After 
full  hearing  in  the  case,  the  complainant  withdrew  his 
prosecution,  and  it  was  thereupon  ordered  "  that  the  plain- 
tiff be  discharged.  An  action  for  mahcious  prosecution 
is  now  proper,^ 

Tlie  rule,  it  will  be  noticed,  is  not  altogether  consistent 
in  these  cases,  and  hence  no  criterion  can  be  laid  down 
which  shall  be  apphcable  to  all.  It  is  clear,  however,  that 
after  the  prisoner  has  been  put  in  jeopardy,  in  the  legal 
sense,  a  dismissal  of  the  suit  and  discharge  of  tiie  defend- 

1  Bacon  v.  Towne,  4  Cush.  217. 

2  Cardival  v.  Smith,  109  Mass.  158. 
*  Sayles  v.  Briggs,  4  Met.  421. 


76  DUTIES  OF  INDIVIDUALS   INTER   SE.     [Chap.  Ill 

ant  will  (so  far  as  the  rule  concerning  the  tennination  of 
the  prosecution  is  concerned)  give  him  a  right  of  action. 
A  dismissal  at  such  a  stage  is  a  virtual  acquittal,  since 
a  person  cannot  be  put  twice  in  jeopardy  for  the  same 
offence.  But  a  state  of  jeopardy  is  not  reached  until  the 
swearing  of  the  petit  jur}- ;  and,  according  to  some  of  the 
authorities,  not  until  after  their  verdict.^  Hence  if  this 
were  the  test,  an  action  for  malicious  prosecution  could 
not  be  instituted  upon  the  failure  of  the  grand  jury  to  find 
an  indictment,  or  upon  the  discharge  of  a  magistrate  who  . 
has  no  power  to  convict.  In  neither  case  has  the  prisoner 
been  in  jeopardy.  The  fact  appears  to  be  that,  notwith- 
standing the  language  of  the  judges,  a  termination  of  the 
(criminal)  proceedings  with  an  acquittal  (actual  or  vir- 
tual) is  necessary  onl}-  in  case  an  indictment  has  been 
found  against  the  prisoner.  In  other  cases,  it  is  only 
necessary  that  the  prosecution  of  the  prisoner  should  be 
dismissed.  And  though  this  be  not  done  by  request  of  the 
prosecutor,  he  may  be  hable.^ 

1  See  1  Bishop,  Criminal  Law,  §  1018  (0th  ed.). 

'^  Witham  v.  Gowan,  14  Maine,  3G2.  The  rule  requiring  an  ac- 
quittal of  the  party  prosecuted  is  founded  upon  an  early  English 
statute  entitled  "Malicious  Appeals."  Westm.  2,  c.  12  (13  Edw.  1). 
By  this  statute  it  was  ordained  that  when  any  person  maliciously 
"  appealed  [that  is,  accused  and  prosecuted]  of  felony  surmised  upon 
him,  doth  acquit  himself  in  the  King's  Court  in  due  manner,"  &c.,  the 
appellor  shall  be  imprisoned  and  be  liable  in  damages  to  the  injured 
party.  Had  this  statute  been  always  referred  to  in  the  modern  author- 
ities, the  explanation  of  the  subject  would  have  been  satisfactory. 
The  statute  applies  to  cases  of  prosecutions  for  felony  alone ;  and  in 
such  cases  only  is  an  acquittal  necessary.  All  other  cases  stand,  so 
far  as  this  statute  affects  the  law,  as  at  common  law.  Prosecutions 
for  misdemeanors,  prosecutions  before  inferior  courts,  and  civil  prose-  ■ 
cutions,  are  left  to  be  governed  by  the  dictates  of  reason  and  political 
economy.  The  statute  has  not  been  materially  departed  from ;  but 
its  existence  appears  to  have  been  overlooked  in  modern  times,  and 
the  consequence  is  seen  in  the  unfortunate  explanations  of  the  law 
given  by  the  courts  and  above  stated. 


§  3.]  MALICIOUS  PROSECUTION.  77 

By  way  of  summary,  the  various  rules  of  law  may  be 
thus  stated:  A  civil  suit  is  terminated  (1)  when  the 
plaintiff  has  withdrawn,  or  othei-wise  discontinued,  his 
action ;  or  (2)  when  judgment  has  been  rendered  in  favor 
of  the  defendant.  A  criminal  suit  is  tenninated  (1)  when 
the  prosecution,  if  brought  before  a  magistrate,  has  been 
dismissed,  or  (2)  when,  if  preferred  before  the  grand  jury, 
that  body  has  found  no  indictment ;  or  (3)  when,  an  in- 
dictment having  been  found,  and  the  prisoner  having  been 
put  in  jeopardy,  the  prosecution  has  been  dismissed ;  or 
(4)  when  a  verdict  of  the  jury  acquitting  the  prisoner  has 
been  rendered.  Perhaps  the  prisoner  should  also  have 
been  discharged ;  but  he  is  entitled  to  a  discharge  in  all 
these  cases. 

§  3.    Of  the  Want  of  Probable  Cause. 

Supposing  the  plaintiff  to  have  begun  his  action  after 
the  termination  of  the  prosecution,  it  then  devolves  upon 
him  further  to  establish  the  defendant's  breach  of  dut}'  by 
showing  that  he  instituted  the  prosecution  without  reason- 
able gi'ounds.^  And  this,  wheri  applied  to  criminal  cases, 
means  that  he  ought  to  show  that  no  such  state  of 
facts  or  circumstances  was  known  as  would  induce  men  of 
•  ordinary  intelligence  and  caution  to  believe  the  charge 
\preferred  to  be  true.*^  Or,  conversely,  probable  cause 
tfor  preferring  a  charge  of  crime  is  deemed  to  be  a  reason- 
jable  ground  of  suspicion,  supported  by  circumstances  suffi- 
•ciently  strong  of  themselves  to  wan'ant  a  cautious  man  in 
believing  the  accused  to  be  guilt}'.^ 

To  act,  therefore,  on  very  slight  circumstances  of  sus- 
picion, such  as  a  man  of  caution  would  deem  of  little 
weight,  is  to  act  without  probable  cause.     For  example  : 

1  Turner  v.  Ambler,  10  Q.  B.  252. 
'•^  Driggs  V.  Burton,  44  Vt.  124. 
«  Boyd  V.  Cross,  35  Md.  194. 


78  DUTIES   OF  INDIVIDUALS  INTER  SE.     [Chap.  IIL 

The  defendant  procures  the  arrest  of  the  plaintiff  upon  a 
charge  of  being  implicated  in  the  commission  of  a  rob- 
ber}', which  in  fact  has  been  committed  b}'  a  third  person 
alone,  who  absconds.  The  plaintiff,  who  has  been  a  fel- 
low-workman with  the  criminal,  has  been  heard  to  say 
that  he  (the  plaintiff)  had  been  told,  a  few  hours  before 
the  robberj',  that  the  robber  had  absconded,  and  that  he 
had  told  the  plaintiff  that  he  intended  to  go  to  Australia. 
The  robber  has  also  been  seen,  earl}'  in  the  morning  after 
the  robber}',  coming  from  a  public  entr}'  leading  to  the 
hack  door  of  the  plaintiff's  house.  These  facts  show  a 
want  of  probable  cause  for  the  aiTCst.^ 

In  civil  cases,  however,  it  is  lawful  for  a  person  to  begin  a 
suit  on  ver}'  slight  grounds  of  claim  ;  ^  and  a  gi-eater  latitude 
in  the  application  of  the  doctrine  of  reasonable  cause  must 
be  exercised  in  such  cases  before  the  party  can  be  justly 
deemed  liable  for  a  malicious  prosecution.  A  person  may 
try  the  question  of  a  right  for  the  mere  purpose  of  settling 
a  doubt  in  his  own  mind,  and  fixing  a  safe  rule  to  act  upon ; 
though  he  may  expect  a  decision  contrary  to  his  wishes.  But 
the  plaintiff's  object  in  such  a  case  must  be  the  real  desire  to 
have  a  decision  on  the  question  raised,  and  not  b}'  indirec- 
tion to  accomplish  some  other  purpose  under  coercion.^ 

It  is  generall}-  laid  down  that  the  question  of  probable 
cause  is  to  be  decided  by  the  circumstances  existing  at 
the  time  of  the  arrest,  and  not  by  the  turn  of  subsequent 
events.^  If  the  defendant  had  then  such  grounds  for  sup- 
posing the  plaintiff  guilty  of  the  crime  charged  as  would 
satisfy  a  cautious  man,  he  violates  no  duty  to  the  plaintiff 

•  Busst  V.  Gibbons,  30  Law  J.  Ex.  75. 

2  See  Wren  v.  Weild,  Law  R.  4  Q.  B.  730;  Green  v.  Button,  2 
Cromp.  M.  &  R.  707. 

8  See  Ravcnga  v.  Mackintosh,  2  Barn.  &  C.  693. 

*  Contra,  Adams  v.  Lisber,  3  Blackf.  241 ;  Hickman  v.  GrMn,  6  Mo. 
37.     See  Bigelow's  L.  C.  Torts,  198-200. 


§  3.]  MALICIOUS  PROSECUTION.  79 

in  procuring  his  arrest,  though  such  grounds  be  immedi- 
ately and  satisfactorily  explained  away,  or  the  truth  dis- 
covered by  the  prosecutor  himself.  For  example  :  The 
defendant  procures  the  plaintiff  to  be  arrested  for  the 
larceny  of  certain  ribbons,  on  reasonable  grounds  of 
suspicion.  He  afterwards  finds  the  ribbons  in  his  own 
possession.     He  is  not  liable.^ 

On  the  other  hand,  in  accordance  with  the  same  prin- 
ciple, if  the  prosecutor  was  not  possessed  of  facts  justif}'- 
ing  a  belief  that  the  accused  was  guilty  of  the  charge,  it 
matters  not  that  subsequent  events  (short  of  a  judgment 
of  conviction,  as  to  which  presently)  show  that  there  ex- 
isted, in  fact,  though  not  to  the  prosecutor's  knowledge, 
circumstances  sufficient  to  have  justified  an  aiTcst  b}'  any 
one  cognizant  of  them.  He  has  violated  his  dutj'  in  pro- 
curing the  arrest.  For  example :  The  defendant  to  an 
action  for  malicious  prosecution  pleads  facts  sufficient  to 
constitute  probable  cause,  but  does  not  allege  that  he  was 
cognizant  of  such  facts  when  he  procured  the  plaintiff's 
arrest.     The  plea  is  not  good."^ 

It  has,  however,  been  frequenth'  decided  that  a  judg- 
ment of  conviction  is  conclusive  evidence  of  the  existence 
of  probable  cause  ; '  unless  it  can  be  shown  that  the  judg- 
ment was  obtained  b3'  fraud  or  perhaps  perjury.*  This, 
however,  is  inconsistent  with  the  rule  that  the  question  of 
probable  cause  is  to  be  determined  b}"  the  state  of  facts 
within  the  prosecutor's  knowledge  (supposing  him  to  have 
acted  bonajide  upon  such  facts)  at  the  time  of  the  arrest. 
Judgment  of  conviction  does  not  (in  fact)  prove  that  the 
prosecutor  at  the   time   had   reasonable  grounds  to  sus- 

»  Swain  v.  Stafford,  4  Ired.  392 ;  s.  c.  lb.  398. 

2  Delegal  v.  Highley,  3  Bing.  N.  C.  950.  But  see  Adams  «.  Lisber 
and  Hickman  v.  Griffin,  supra. 

3  See  ante,  p.  72 ;  Bigelow's  L.  C.  Torts,  196. 

*  B\irt  V.  Place,  4  Wend.  591 ;  Pajson  v.  Caswell,  22  Maine,  212. 


80  DUTIES   OF  INDIVIDUALS  INTER   SE.     [Chap.  III. 

pect  the  guilt  of  the  prisoner,  —  such  grounds,  that  is,  as 
would  have  induced  a  cautious  man  to  arrest  the  suspected 
person.  It  would  be  more  accurate  to  say  that  the  Statute 
of  Malicious  Appeals,  which  in  reality  lies  at  the  foun- 
dation of  the  law  concerning  cruninal  prosecutions,  by 
plain  implication  exempts  the  prosecutor  (of  felony)  from 
liability  in  case  of  the  conviction  of  the  prisoner.' 

Turning  from  cases  of  conviction,  it  is  to  be  observed 
that  though  the  prosecutor  be  in  a  situation  to  show  that 
he  had  probable  cause,  still  if  he  did  not  believe  the  facts 
and  rely  upon  them  in  procuring  the  arrest,  he  has  com- 
mitted a  breach  of  duty  towards  the  person  arrested.  Foi 
example  :  The  defendant  goes  before  a  magistrate  and  pre- 
fers against  the  plaintiff  the  charge  of  larceny,  for  which 
there  was  reasonable  ground  in  the  facts  within  the  de- 
fendant's cognizance.  The  defendant,  however,  does  not 
beliqve  the  plaintiff  guilty,  but  prefers  the  charge  in  order 
to  coerce  the  plaintiff  to  pay  a  debt  which  he  owes  to  the 
defendant.  The  defendant  has  acted  without  probable 
cause. ^ 

I  Aiite,  p.  76.  K  the  statute  be  followed,  this  will  be  true  only  in 
cases  of  conviction  of  what  was  felony  at  common  law.  In  other 
cases,  the  conviction  could  not,  by  the  statute,  bar  an  action ;  nor 
could  it  bar  an  action  for  malicious  prosecution  on  grounds  of 
estoppel,  because  the  parties  to  the  two  actions  are  different ;  the 
criminal  suit  being  between  the  State  and  the  prisoner.  The  judg- 
ment could  not,  properly  speaking,  be  more  than  prima  facie  evidence 
of  probable  cause,  even  if,  of  itself  alone,  it  could  be  considered  as 
amounting  to  any  evidence  on  that  point.  The  question  before  the 
petit  jury,  as  has  elsewhere  been  observed  {post,  p.  82),  is,  not 
whether  there  was  probable  cause  for  the  arrest,  within  the  know- 
ledge of  the  prosecutor,  but  whether  the  prisoner  is  guilty.  How- 
ever, the  language  of  the  decisions  is  that  the  conviction  is  conclusive 
of  probable  cause ;  and  the  author  at  one  time  considered  this  to  be 
correct.     Bigelow's  L.  C.  Torts,  190,  197. 

■^  Broad  v.  Ham,  5  Bing.  N.  C.  722.  Had  the  defendant  believed 
the  charge,  it  could  not  have  been  material  that  he  procured  the 
arrest  mainly  for  the  purpose  of  getting  his  pay. 


§  3.]  MALICIOUS  PROSECUTION.  81 

The  authorities  are  in  conflict  as  to  the  effect  of  a  dis- 
charge of  the  plaintiff  b}'  a  committing  magistrate,  before 
whom  he  has  been  arrested  on  suspicion.  It  is  held  by 
some  of  the  authorities  that  the  discharge  is  prima  facie 
evidence  of  a  want  of  probable  canse,  on  the  ground  that 
such  a  magistrate  is  entitled  to  bind  the  part}'  over  or  hold 
him  to  bail  on  very  slight  evidence,  such  as  would  amount 
to  probable  cause.''  His  decision  discharging  the  prisoner 
is  a  decision  that  no  reasonable  ground  has  been  shown  by 
the  prosecutor  for  arresting  the  prisoner.  The  contrary 
has  been  held  by  other  courts,  on  the  ground  that  a  magis- 
trate's decision  is  no  evidence  in  a  prosecution  of  the  same 
party  before  the  grand  jury."^ 

This  latter  rule  of  law,  as  explained,  would  require  the 
courts  to  decide  that  a  commitment  of  the  prisoner  by  the 
magistrate  could  not  be  evidence  of  probable  cause.  And 
if  probable  cause  had,  in  all  situations,  been  understood  in 
the  one  natural  sense  of  facts  furnishing  an  adequate  mo- 
tive to  the  party  requiring  the  arrest,  such  u  result  would 
have  been  inevital^le.  But,  apparently  through  a  second 
confusion  as  to  the  true  meaning  of  probable  cause,  it  has 
been  decided  that  a  magistrate's  commitment  of  the  pris- 
oner for  trial  is  evidence^  (though  not  conclusive)  of  the 
existence  of  proper  gi'ound  for  instituting  the  prosecution.'* 

If  this  were  sound  doctrine,  that  the  magistrate's  commit- 
ment is  prima  facie  evidence  of  probable  cause,  if  ought  to 
be  equall}'  true  that  the  magistrate's  discharge  would  l)e 
prima  facie  evidence  of  want  of  probable  cause.  The  sound- 
ness^  however,  of  the  doctrine  that  either  commitment  or 
conviction  is  CAndence  of  probable  cause  in  the  proper  sense  is 

1  Bostick  V.  Rutherford,  4  Hawks,  83;  Williams  v.  Norwood,  2 
Yerg.  329. 

2  Israel  v.  Brooks,  23  111.  575. 

8  Bacon  c.  Towne,  4  Gush.  217;  Graham  v.  Noble,  13  Serg.  &  R. 
270;  Burt  x\  Place,  4  Wend.  591 ;  Reynolds  v.  Kennedy,  1  Wils.  232. 
*  Bacon  v.  Towne,  and  Burt  v.  Place,  supra. 


82  DUTIES  OF  INDIVIDUALS  INTER  SE.     [Chap  III. 

SO  doubtful  that  it  cannot  be  safel}'  appealed  to  in  the  de- 
cision of  the  conflict  mentioned. 

Taking  probable  cause  in  its  ordinaiy  and  natural  sense, 
the  action  of  the  magistrate  should  have  no  bearing  upon 
the  question.  That  action  merely  determines  whether  the 
facts  adduced  afford  sufficient  ground  for  committing  the 
prisoner.  In  such  preliminary  proceeding,  the  magistrate 
has  nothing  to  do  with  the  question  whether  the  prosecu- 
tor acted  upon  sufficient  cause. 

The  mere  abandonment  of  the  (criminal)  prosecution  by 
the  prosecutor,  and  the  acquittal  of  the  prisoner,  are  no 
I  evidence  of  a  want  of  probable  cause. ^   Such  facts  in  them- 
f:  selves  show  nothing  except  that  the  prosecution  has  failed. 
I  It  ma}'  still  have  been  undertaken  upon  reasonable  grounds 
V  of  suspicion.-     And  tlie  same  is  true  of  an  entrj-  of  nolle 
prosequi.^     But  the  circumstances  of  the  abandonment  of 
the  prosecution  maybe  such  as  to  indicate /)nOTa/ae?'e  a 
want  of  probable  cause.      For  example  :    The  defendant 
presents  two  bills  for  perjury  against  the  plaintiff,  but  does 
not  himself  appear  before  the  grand  jmy,  and  the  biUs  are 
ignored.     He  presents  a  third  biU,  and,  on  his  own  testi- 
mony, the  grand  jur}'  return  a  true  bill.     The  defendant 
now  keeps  the  prosecution  suspended  for  three  j'ears,  when 
the  plaintiff,  taking  down  the  record  for  trial,  is  acquitted  ; 
the  defendant  declining  to  appear  as  a  witness,  though  in 
court  at  the  time  and  called  upon  to  testify'.      These  facts 
indicate  the  absence  of  probable  cause.* 

The  mere  omission,  likewise,  to  appear  and  prosecute  a 

1   civil  action,  by  reason  of  which  the  defendant  obtains  a 

judgment  of  default,  is  no  evidence  of  a  want  of  probable 

1  Willans  v.  Taylor,  6  Bing.  186 ;  Johnson  v.  Chambers,  10  Ired. 
287 ;  Vandcrbilt  v.  Mathis,  6  Duer,  .304  ;  s.  c.  Rigclow's  L  C.  Torts,  178. 

2  Tlie  magistrate  or  grand  jury  decides  whether  there  is  reason- 
able ground  for  putting  the  prisoner  upon  trial ;  the  petit  jury 
decides  whether  the  prisoner  is  guilty. 

8  Yoeum  v.  Tolly,  1  B.  Mon.  358. 
*  Willans  v.  Taylor,  6  Bing.  18(5. 


§  3.]  MALICIOUS  PROSECUTION.  83 

cause.*  The  voluntar}' discontinuance  of  such  a  suit,  how- 
ever, is  deemed  to  indicate  the  want  of  prol)al)le  cause  for 
instituting  the  action.  For  example  :  The  defendant  pro- 
cures the  plaintift'  to  be  arrested  and  held  to  bail  on  a 
charge  of  slander.  The  cause  coming  on  for  trial,  the 
then  i)laintifF  appears,  discontinues  the  suit,  and  pa3-8  the 
costs.  This  is  evidence  of  a  want  of  reasonable  ground  for 
the  action. ** 

If  the  prosecutor  take  the  advice  of  a  practising  law5'er 
upon  the  question  whether  the  facts  within  his  knowledge 
are  such  as  to  justify  a  complaint,  and  act  bona  fide  upon 
the  advice  given,  he  will  be  protected  even  though  the 
counsel  gave  erroneous  advice.  That  is,  he  will  be  pro- 
tected, though  in  fact  he  might  not  have  been  in  posses- 
sion of  facts  such  as  would  have  justified  a  prosecution 
without  the  advice.  For  example :  The  defendant  states 
to  his  attorne}'  the  facts  in  his  possession  concerning  a 
crime  supposed  to  have  been  committed  by  the  plaintiff'. 
The  attorney  advises  the  defendant  that  he  can  safely  pro- 
cure the  plaintiff''s  arrest.  The  defendant  is  not  lialile, 
though  the  facts  presented  did  not  in  law  constitute  prob- 
able cause. ^ 

The  prosecutor  must,  however,  as  tlie  proposition  iteelt' 
states,  act  bona  fide  upon  the  advice  given,  if  he  rest  his 
defence  upon  such  a  ground  alone.*     For  example :  The 

^  Burhana  v.  Sanford,  19  Wend.  417.  So  if  the  siiit  be  termi- 
nated by  a  compromise,  and  then  discontinued,  no  action  can  be 
maintained.     Mayer  w.  Walter,  64  Penn.  St.  283. 

2  Burhans  v.  Sanford,  supra. 

8  Snow  V.  Allen,  1  Stark,  502.  See  Cooper  v.  Utterbach,  37  IMd. 
282 ;  Olmstead  v.  Partridge,  10  Gray,  381. 

<  The  prosecutor  might  plead  both  the  advice  of  counsel  and  also 
the  facts  themselves  within  his  knowledge;  and  if  then  it  should 
appear  that  he  did  not  act  upon  the  advice  in  good  faith,  or  that  he 
did  not  state  all  the  facts  to  the  attorney,  he  would  still  be  protected, 
probably,  if  the  facts  should  show  a  reasonable  ground  for  the 
arrest. 


84  DUTIES  OF  INDIVIDUALS  INTER   SE.     [Chap.  IIL 

defendant  procures  the  arrest  of  the  plaintiff,  having  first 
taken  the  advice  of  legal  counsel  upon  the  facts.  This 
advice  is  erroneous,  and  it  is  not  acted  upon  in  good  faith, 
believing  it  to  be  eon*ect;  the  arrest  being  procured  for 
the  indirect  and  sinister  motive  of  compelling  the  plain- 
tiff to  sanction  certain  illegal  bonds.  The  defendant  is 
liable.^ 

If,  after  taking  legal  advice  and  before  the  arrest,  new 
facts  come  to  the  knowledge  of  the  prosecutor,  he  can- 
not justify  the  arrest  as  made  on  advice,  unless  such  new 
facts  furnish  further  evidence  of  the  guilt  of  the  sus- 
pected part3\  If  they  should  be  of  a  contrary  nature, 
casting  new  doubt  upon  the  party's  guilt,  the  prosecutor 
cannot  safely  proceed  to  procure  an  arrest  except  upon 
new  advice  ;  unless  indeed  the  entire  chain  of  facts  in  his 
possession  shall  satisfy  the  court  that  there  existed  a 
reasonable  ground  for  his  action.  To  make  use  of  the 
advice  given,  when  the  new  facts  indicate  that  the  accused 
is  not  guilty,  is  not  to  act  upon  the  advice  in  good 
faith.2 

Again,  if  the  only  defence  be  that  the  prosecutor  acted 
upon  legal  advice,  a  breach  of  duty  may  still  be  made  out 
if  it  appear  that  the  prosecutor  untruly  stated  to  the  attor- 
ney the  facts  within  his  knowledge.  The  plaintiff's  case, 
so  far  as  it  rested  on  the  proof  of  want  of  probable  cause, 
would  be  established  by  showing  that  the  actual  facts 
known  to  the  prosecutor  (differing  from  those  on  which  the 
adA^ice  was  obtained)  showed  that  he  had  no  reasonable 
ground  for  instituting  the  prosecution. 

The  result  is,  that  the  defence  of  advice  of  legal  counsel, 
to  establish  probable  cause,  must  not  be  resorted  to  as  a 
mere  cover  for  the  prosecution,  but  must  be  the  result  of 
an  honest  and  fair  purpose ;  and  the  statement  made  at 

1  Revenga  v.  Mackintosh,  2  Barn.  &  C.  693. 
'^  See  Cole  v.  Curtis,  16  Minn.  182. 


§  3.]  MALICIOUS   TROSECUTION.  85 

the  time  b}^  the  prosecutor  to  his  counsel  must  be  full  and 
true,  and  consistent  with  that  purpose.^ 

This  defence  of  having  acted  upon  legal  advice  is  a 
strict  one,  confmed  to  the  case  of  advice  obtained  from 
lawyers  admitted  to  practise  in  the  comts  of  the  State. 
Such  persons  are  certified  to  be  competent  to  give  legal 
advice,  and  their  advice  when  properl}'  obtained  and  acted 
upon  is  conclusive  of  the  existence  of  probable  cause.  But 
if  the  prosecutor  act  upon  the  advice  of  a  person  not  a  law- 
yer, and  therefore  not  declared  competent  to  give  legal 
advice,  the  facts  must  be  shown  upon  which  the  advice  was 
obtained,  however  honestly  and  property  it  was  sought  and 
acted  upon.  It  is  not  even  enough  that  the  advice 
was  given  by  an  officer  of  the  law,  professing  familiarity 
with  its  principles,  if  such  a  person  were  not  a  law^'er. 
For  example :  The  defendant  procures  the  arrest  of  the 
plaintiff  upon  advice  of  a  justice  of  the  peace,  with  whom 
he  lias  been  in  the  habit  of  advising  on  legal  matters  ;  but 
the  justice  is  not  a  lawyer.  This  is  not  evidence  of  prob- 
able cause. '^ 

The  want  of  probable  cause  cannot  be  inferred  from 
mere  evidence  of  malice,  since  a  person  ma^-  maliciously 
prosecute  another  whom  he  has  the  strongest  evidence 
against,  —  whom,  indeed,  he  caught  in  the  commission  of 
the  crime. ^  There  must  be  some  evidence,  apart  from  the 
proof  of  malice,  indicating  that  the  prosecutor  instituted 
the  suit  under  circumstances  which  would  not  have  induced 
a  cautious  man  to  act. 

It  should  be  observed,  finally,  that  the  question  of  want 
of  probable  cause  is  a  question  of  law,  to  be  detennined 
by  the  court  upon  the  facts  proved.     The  facts  material  to 

1  Walter  v.  Sample,  25  Penn.  St.  275. 

2  Beal  V.  Eobcson,  8  Ired.  276. 

8  Turner  v.  Ambler,  10  Q.  B.  252,  257;  Boyd  v.  Cross,  35  Ud. 
194. 


I 


86  DUTIES   OF  INDIVIDUALS  INTER  SE.     [Chap.  III. 

the  question  of  probable  cause  must  be  found  by  the  jury ; 
and  the  judge  decides,  as  matter  of  law,  whether  the  facts 
so  found  estabhsh  probable  cause  or  a  want  of  it.^ 

§  4.  Of  Malice. 

The  plaintiff,  to  make  out  a  breach  of  duty  by  the  defend- 
ant, must  also  produce  evidence  such  as  will  indicate  that 
the  prosecution  was  instituted  with  malice  towards  the 
accused. 2  Malice  cannot  be  inferred  from  the  mere  proof 
of  a  want  of  probable  cause, ^  any  more  than  want  of  proba- 
ble cause  can  be  inferred  from  mere  proof  of  malice.'*  A 
man  may  institute  a  prosecution  against  another  without 
the  least  feeling  of  malice  towards  him,  though  he  had  not 
adequate  grounds  for  doing  so.^ 

The  jury  must  have  the  right,  and  it  is  their  dutj--,  to  pass 
upon  the  question  of  malice  as  a  distinct  matter.     There 
is,  therefore,  no  such  thing  in  the  law  of  malicious  prose- 
cution as  the  implied  malice  or  mahce  in  law  of  slander 
and  libel. ^   For  example  :  Evidence  having  been  introduced 
in  an  action  for  a  malicious  prosecution,  which  showed  that 
the  defendant  had  instituted  the  prosecution  without  proba- 
ble cause,  the  judge  instructs  the  jury  that  there  are  two        ^ 
kinds  of  malice,  malice  in  law  and  malice  in  fact,  and  that        s 
in  the  present  case  there  was  malice  in  law  because  the         * 
prosecution  was  wrongful,  being  without  probable  cause.         Z^ 
This  is  erroneous ;  the  existence  of  malice  being  a  ques-        J^ 
tion  for  the  jur}'.'' 

1  Turner  v.  Ambler,  supra.     See,  also,  Driggs  v.  Burton,  44  Vt.  ">  • 
124;  Boyd  v.  Cross,  35  Md.  194. 

2  That  the  malice  should   be   against  the  party  prosecuted  was 
laid  down  in  Diet:?  v.  Langfitt,  G3  Penn.  St.  234. 
"*  8  Vandcrbilt  v.  Mathis,  5  Duer,  304;  Bigelow's  L.  C.  Torts,  178. 

4  Griffin  v.  Chubb,  7  Tex.  603,  617. 
6  lb.  p.  616. 

«  Mitchell  V.  Jenkins,  5  Barn.  &  Ad.  588. 
J  lb. 


5^ 


§  5.]  MALICIOUS  rHOSECUTION.  87 

The  evidence  offered  to  establish  the  facts  which  go  to 
show  the  want  of  probable  cause  may,  however,  indicate 
the  existence  of  malice  ;  and  iu  such  a  case  tlie  jury  may 
find  the  existence  of  a  malicious  motive  without  further 
proof.  But  there  must  be  some  evidence  indicating  actual 
malice.^ 

It  is  not  necessar}'^,  however,  notwithstanding  the  lan- 
guage of  some  of  the  old  decisions,"^  to  prove  the  existence 
of  an  intense  hostilitj"  and  rancor :  evidence  of  slight 
hostility,  or  of  the  existence  of  any  sinister  motive,  is  suf- 
ficient. For  example  :  The  defendant  is  shown  to  have 
displaj'ed  much  activity  and  zeal  in  a  prosecution  of  the 
plaintiff.     This  may  be  considered  as  evidence  of  malice.^ 

§  5.  Of  Damage. 

If  the  charge  upon  which  the  prosecution  was  instituted 
was  of  the  commission  of  a  crime,  such  as  (being  untrue) 
would  have  constituted  slander  had  it  not  been  preferred  in 
court,  the  plaintiff,  upon  proof  of  the  tennination  of  the 
prosecution,  the  want  of  probable  cause,  and  malice,  has 
made  out  a  case,  and  is  entitled  to  judgment.  It  is  not 
necessar}'  for  him  to  prove  that  he  has  sustained  any 
pecuniar}'  damage.  For  example  :  The  defendant  causes 
the  plaintiff  to  be  indicted  for  the  stealing  of  a  cow,  falsely, 

1  Griffin  v.  Chubb,  7  Tex.  603;  Levy  v.  Brannan,  39  Cal.  485. 
Some  of  the  cases  are  inconsistent  with  this  proposition,  but  such 
are  not  now  accepted,  either  in  tliis  country  or  in  England.  The 
existing  state  of  the  law  may  be  seen  in  the  cases  already  cited  in 
the  present  section,  and  in  the  following :  Boj'd  v.  Cross,  35  Md. 
194;  Mcrkle  v.  Ottensmeyer,  50  Mo.  49;  Barron  v.  Mason,  31  Vt. 
189.  It  will  be  noticed  that  in  England  the  doctrine  concerning 
malice  in  law  (by  which  malice  must  be  inferred  from  proof  of  the 
want  of  probable  cause)  was  repudiated,  as  inapplicable  to  the  law 
of  malicious  prosecution,  by  the  King's  Bench,  in  Mitchell  v.  Jen 
kins,  6  Barn.  &  Ad.  588,  above  referred  to. 

2  Savile  v.  Roberts,  1  Salk.  13. 
8  Straus  V.  Young,  36  Md.  246. 


88  DUTIES  OF  INDIVIDUALS   INTER   SE.     [Chap.  III. 

without  probable  cause,  and  of  malice.  The  plaintiff  is 
entitled  to  recover  without  producing  evidence  that  he  has 
sustained  any  actual  damage.^ 

But  it  is  onl}'  for  the  prosecution  of  a  cha,rge  the  verbal 
imputation  of  which  in  pais  would  constitute  slander  that 
the  mere  institution  of  the  prosecution  can  be  actionable 
without  specific  damage.^  For  example  :  The  defendant 
falsel}'  prefers  against  the  plaintiff  a  criminal  charge  of 
assault  and  battery,  without  cause  and  with  malice.  The 
plaintiff  cannot  recover  for  a  malicious  prosecution  without 
proof  of  actual  pecuniary  damage.* 

It  follows  that  this  action  for  a  malicious  prosecution 
cannot  be  maintained  without  proof  of  special  damage 
when  the  prosecutor  has  procured  the  indictment  of  the 
plaintiff  for  the  commission  of  that  which  is  not  a  crime  or 
a  misdemeanor  involving  moral  turpitude.  For  example  : 
The  defendant  procures  the  plaintiff  to  be  indicted  for  the 
killing  of  the  former's  cattle.  The  plaintiff  must  prove 
special  damage  ;  the  offence,  though  charged  as  a  crime, 
being  only  a  trespass.* 

§  6.  Of  Analogous  Resiedies. 

If  the  prosecution  fail  by  reason  of  the  circumstance 
that  the  court  in  issuing  its  warrant  exceeded  its  jurisdic- 
tion, or  that  the  warrant  or  indictment  was  defective,  it  is 
not  clear  whether  the  accused  should  sue  for  malicious  pros- 
ecution or  for  slander  ;  supposing  the  charge  to  have  been 
defamator}'.  It  would  give  him  an  obvious  advantage  to 
sue  for  slander  since  then  he  would  not  be  compeUed  to 

1  SeeFrierson  v.  Hewitt,  2  Hill  (S.  C),  499. 

2  Frierson  v.  Hewitt,  supra. 

3  lb.  The  last  two  examples  are  imaginary,  but  they  are  fully 
sustained  by  the  case  cited. 

*  Frierson  v.  Hewitt,  supra.  This  was  the  actual  case  before  the 
court. 


§6.]  MALICIOUS   PROSECUTION.  89 

prove  a  want  of  probable  cause  or  the  existence  of  malice. 
Man}'  of  the  authorities  consider  the  right  remedy  to  be 
through  an  action  for  malicious  prosecution.^  The  ques- 
tion perhaps  turns  upon  the  meaning  attached  to  the  term 
''prosecution."  Can  a  person  be  said  to  have  been  prose- 
cuted in  the  legal  sense  when,  b}'  reason  of  defect  of  pro- 
cess or  the  want  of  jurisdiction,  there  was  only  an  attempt 
to  prosecute  ?  The  cases  which  answer  this  in  the  negative 
may  in  a  narrow  sense  be  right. ^  But  it  is  not  denied  in 
any  of  the  authorities  that  an  action  of  some  form  is  main- 
tainable in  such  a  case.  The  decisions  which  hold  an  action 
for  a  malicious  prosecution  maintainable  do  not  declare  that 
an  action  for  slander  is  not  proper :  proceeding  upon  the 
common-law  distinctions  between  trespass  (an  arrest  hav- 
ing been  made,  which,  when  wrongful,  is  a  trespass)  and 
case  as  forms  of  action,  the}'  merel}'  declare  that  case  is 
maintainable  ;  ^  and  the  action  for  slander  is  an  action  on 
the  case.  Nor  do  the  cases  which  have  decided  that  an 
action  for  malicious  prosecution  is  not  proper,  declare  that 
an  action  for  slander  could  not  be  maintained.  The}'  merely 
hold  that,  where  a  trespass  is  the  gist  of  action,  case  is  not 
the  proper  form  of  action  ;  but  in  an  action  for  slander,  no 
trespass  is  alleged,  — at  least,  as  the  gist  of  action.^ 

In  this  connection,  attention  should  be  directed  to  actions 
for  abuse  of  the  process  of  the  courts.  An  action  is  given 
by  law  for  such  an  act  without  requiring  the  plaintiff  to 

1  Pippet  I'.  Hearne,  5  Bam.  &  Aid.  634  ;  Morris  v.  Scott,  21  Wend. 
281 ;  Stone  v.  Stevens,  12  Conn.  219;  Hays  v.  Younglove,  7  B.  Mon. 
545 ;  Shaul  v.  Brown,  28  Iowa,  37.  See  Braveboy  v.  Cockfield,  2 
McMull.  270  ;  Turpin  v.  Remy,  3  Blackf.  210. 

2  Braveboy  v.  Cockfield,  and  Turpin  v.  Remy,  supra.  See  Bodwell 
V.  Osgrood,  3  Pick.  379. 

8  Pippet  V.  Hearne,  and  Morris  v.  Scott,  supra. 
*  In  the  suit  for  malicious  prosecution,  the  arrest  was  the  gist  and 
only  ground  of  action  in  the  cases  referred  to. 


130  DUTIES  OF  IXDIVinUALS  INTER  SE.     [Chap.  IIL 

prove  either  the  termination  of  the  proceeding  in  which 
the  abuse  of  process  has  taken  place,  or  the  want  of  prob- 
able cause  for  instituting  that  proceeding.  For  example  : 
The  defendant  under  process  of  the  court  in  an  action  for 
a  debt  not  due,  procures  the  plaintiff  through  duress  to 
deliver  valuable  property  (a  ship's  register)  to  him.  The 
defendant  is  liable  in  damages,  without  evidence  of  the 
termination  of  the  suit  or  of  the  want  of  probable  cause. ^ 
Nor  (probabl}')  need  malice  be  proved.^ 

To  maintain  such  an  action,  however,  the  plaintiff's  case 
must  be  something  other  than  a  proceeding  for  a  mahcious 
prosecution.  The  ground  of  action  must  be,  not  a  false 
prosecution  (that  is,  a  prosecution  upon  a  demand  or  accu- 
sation which  has  no  foundation  in  fact) ,  but  an  unlawful 
use  of  legal  process  ;  and  such  an  act  may  be  committed 
as  well  in  the  course  of  a  well-founded  prosecution  as  in  a 
false  one.  If  the  wrong  suffered  consist  in  an  unlawful 
arrest,  the  action  will  be  for  a  false  imprisonment,  of  which 
hereafter ;  if  it  consist  in  an  unlawful  extortion  of  a  con- 
tract or  of  propert}-,  the  action  will  in  substance  be  for 
duress ;  an  example  of  which  has  already-  been  given. ^ 
Other  instances  vaay  be  found  in  actions  for  the  levying 
of  an  execution  for  double  the  sum  due,*  and  in  the  wrong- 
ful levy  of  an  attachment.^ 

"V  1  Grainger  v.  Hill,  4  Bing.  N.  C.  212;  s.  c.  Bigelow's  L.  C.  Torts, 
184. 

2  No  question  was  raised  on  this  point  in  Grainger  v.  Hill,  supra ; 
but  there  can  be  no  doubt  of  the  correctness  of  the  statement  of  the 
text,  if  tlie  action  was  not  in  reality  for  a  malicious  prosecution. 

8  In  case  a  contract  were  thus  obtained,  the  injured  party  could 
elect  to  affirm  the  validity  of  the  contract,  and  sue  for  the  duress,  or 
he  could  deny  the  validity  of  the  agreement,  and  plead  the  duress  in 
an  action  upon  it. 

4  Sommer  v.  Wilt,  4  Serg.  &  R.  19. 

6  Stuart  V.  Cole,  46  Ala.  646. 


§  1.]  CONSPIRACY.  91 


CHAPTER    rV. 

CONSPIRACY. 

§  1.    Introductory. 

Statement  of  the  'hiiij.  A  owes  to  B  the  duty  to  forbear 
to  carry  out,  wholly  or  partly,  against  him,  to  his  damage, 
an}-  unlawful  undertaking  entered  into  with  C. 

The  law  of  conspirac}",  in  its  civil  aspect,  is  often 
treated  as  a  branch  of  the  law  of  malicious  prosecution ; 
with  which  it  has,  indeed,  in  one  of  its  features,  a  close 
connection.  Civil  actions  for  conspirac}'  were  fonnerly 
instituted  in  most  if  not  in  all  cases  for  redress  on  ac- 
count of  unlawful  combinations  for  instituting  criminal 
prosecutions  of  the  grade  of  felony.  Combinations  for 
other  unlawful  purposes  were  redressed  in  other  forms 
of  actions :  generally,  it  appears,  in  an  action  of  deceit ; 
sometimes,  however,  in  an  action  of  trespass. 

Distinct  and  peculiar  rules  of  law  prevailed  in  former 
times  concerning  conspiracies  of  the  first-named  class. 
A  writ  of  conspiracy  could  be  sustained  only  by  proof  of 
an  actual  combination  to  indict  the  plaintiff  of  felony, 
with  the  other  elements  of  an  action  for  malicious  prose- 
cution. Failure  to  prove  the  combination  was  fatal,  even 
though  enough  were  proved  to  establish  a  right  of  action 
for  a  simple  false  prosecution.  The  action  for  the  latter 
offence  was  a  distinct  proceeding.  In  later  times,  the 
wi'it  of  conspiracy  was  emplo3-ed  for  the  redress  of  prose- 
cutions below  the  grade  of  felony ;  and  then  it  became 
unnecessary  in  that  action  to  estabhsh  an  actual  combina- 


92  DUTIES  OF  INDIVIDUALS   INTER   SE.     [Chap.  IV. 

tion,  notwithstanding  the  allegation  of  conspu-ac}'.  The 
law,  however,  relating  to  prosecutions  for  felony  persisted, 
and  the  plaintiff  failed  if  the  evidence  showed  that  the 
prosecution  was  instituted  or  procured  b^'  but  one  person.^ 

This  distinction,  however,  has  in  modern  times  become 
obsolete.  An  action  for  an  alleged  conspiracy  can  now 
be  maintained  in  an}'  case  otherwise  proper,  though  the 
plaintiff  is  unable  to  prove  that  the  unlawful  act  com- 
plained of  was  undertaken  by  more  than  one  person.^ 
This  has  reduced  the  whole  subject  of  conspiracy,  in  its 
civil  aspect,  to  an  harmonious  whole,  and  justified,  if  not 
required,  its  separation  from  the  subject  of  mahcious  prose- 
cution. 

Indeed,  the  result  has  been  to  remove  the  subject  of 
conspirac}',  in  one  aspect,  from  the  body  of  the  law. 
The  existence  of  an  actual  conspiracy  being  unnecessary 
to  the  plaintiff's  action,  nothing  remains,  if  he  prove 
against  but  one  jDerson,  except  that  which  would  be  the 
ground  of  action  against  that  person  had  he  been  alone 
sued.  The  case  would  then  be  nothing  more  than  an 
action  for  deceit,  malicious  prosecution,  false  imprison- 
ment, or  other  like  tort,  according  to  the  nature  of  the 
wrong  actuall}'  provable.  If  this  were  the  onl}'  aspect  of 
the  civil  law  of  conspiracy  as  now  existing,  the  subject 
might  be  omitted ;  but  it  is  not.  The  plaintiff  may  at- 
tempt to  prove  against  all,  or  several  of  the  defendants, 
for  the  better  security  of  his  damages ;  and  it  must  then 
be  often  ascertained  how  the  different  defendants  can  be 
liable  in  law,  supposing  they  have  not  aU  actually  partici- 
pated in  the  wrong  complained  of.  And  then  again  there 
are  questions  concerning  the   necessity  of  the  proof  of 

1  See  upon  this  subject  the  liistorical  notes  on  malicious  prosecu- 
tion and  conspiracy,  in  the  author's  Leading  Cases  on  Torts,  pp. 
190-100,210-214. 

*  Parker  v.  Huntington,  2  Gray,  124. 


§  2.]  CONSPIRACY.  93 

damages  to  be  considered.  The  subject  must  therefore  be 
still  treated  as  a  distinct  branch  of  law,  though  of  much 
narrower  proportions  than  formerly. 

In  the  sense  of  the  existing  law,  a  conspiracy  is  simply 
a  confederacy'  or  combination  of  two  or  more  persons  to 
commit  an  unlawful  act.  For  the  purposes  of  an  indict- 
ment, the  mere  formation  of  such  a  union  is  sufficient : 
for  the  purposes  of  a  civil  action,  it  is  not,  as  will  pres- 
ently appear. 

§  2.    Of  Participation  in  the  Conspiract. 

A  conspirac}'  to  commit  an  unlawful  act,  and  the  doing 
of  some  overt  act  in  pursuance  of  the  conspiracy  to  the 
damage  of  the  plaintiff,  create  a  good  cause  of  action 
against  all  the  parties  to  the  conspiracy.  But  it  is  not 
necessar}'  that  the  overt  act  should  be  participated  in  by 
all  of  the  conspiring  parties :  upon  the  committing  of  an 
act  inflicting  damage,  in  pursuance  of  the  common  plan, 
each  and  all  of  the  parties  to  the  plan  become  hable, 
though  the  act  be  committed  by  onlj'  one  of  them,  and  he 
be  not  sued.  Or  (to  state  the  proposition  in  another  fonn) 
where  two  or  more  have  entered  into  a  conspirac}'  to  injure 
the  plaintiff,  any  act  done  by  either  of  the  conspirators  in 
furtherance  of  the  common  object,  and  in  accordance  with 
the  general  plan  of  the  conspirators,  becomes  the  act  of 
aU ;  and  each  conspirator  is  responsible  for  such  act.  For 
example :  The  defendant  conspires  with  others  to  cheat 
and  defraud  the  plaintif!"  in  the  sale  of  certain  property 
through  fraudulent  misrepresentations,  and  the  scheme  is 
carried  into  effect,  though  by  some  other  member  of  the 
conspiracy  than  the  defendant.  The  defendant  is  liable, 
though  he  himself  made  none  of  the  misrepresentations 
complained  of.^ 

1  Page  V.  Parker,  43  N.  H.  363. 


94  DUTIES  OF  INDIVIDUALS   INTER  SE.     [Chap.  IV. 

Indeed,  if  an  individual  connect  himself  witli  others  in  a 
conspiracy  to  commit  an  unlawful  act,  it  is  not  permitted 
i  him,  when  called  upon  to  respond  for  the  damage  infhcted, 
I  to  saj^  that  the  plan  was  concocted  before  he  became  an 
associate.  By  connecting  himself  with  those  who  formed 
the  conspiracy,  he  adv^pts  their  prior  acts  and  purposes, 
and  becomes  liable  with  the  rest.-^  For  example  :  The  de- 
fendant's agent,  having  authority  to  institute  suits  on  behalf 
of  his  principal,  prosecutes  the  plaintiff  in  the  name  of  the 
defendant,  maliciously  and  without  probable  cause.  This 
ih  done  without  the  instigation  or  direction  of  the  defend- 
ant ;  but  the  latter  upon  becoming  cognizant  of  the  act  of 
his  agent  adopts  it  and  suffers  the  agent  to  continue  the 
prosecution.  The  defendant  is  liable  to  the  same  extent 
as  if  he  had  joined  with  the  agent  at  the  outset  in  concoct- 
ing the  plan  of  harassing  the  plaintiff". '-^ 

The  same  rule  of  law  prevails  in  case  the  conspirators 
employ  others  to  commit  the  overt  act.  The^^  violate  a 
legal  duty  to  the  injured  part}-  no  less  than  if  they  had 
personally  executed  the  unlawful  scheme.  For  example  : 
The  defendant  and  others  conspire  to  prevent  the  plaintiff", 
an  actor,  from  performing  at  a  theatre,  and,  in  pursuance 
of  the  conspirac}',  emplo}*  others  to  go  to  the  theatre  and 
interrupt  the  plaintiff"  in  his  part  of  the  play,  who  carry 
out  the  purpose.     The  defendant  is  liable.^ 

Nor  is  it  material,  where  the  object  of  the  unlawful  com- 
bination is  plunder  and  gain  to  the  conspirators,  that  some 
of  them  derive  no  benefit  from  the  execution  of  the  scheme. 
"^  The}'  are  equall}-  liable,  though  the  overt  acts  were  com- 
mitted by  others  who  refused  to  divide,  or  failed  to  obtain, 

'  Den  d.  Stewart  v.  Johnson,  3  Ilarr.  (N.  J.)  87. 

2  See  Weston  v.  Beeman,  27  Law  J.  Ex.  57.  This,  however,  is 
merely  a  pliase  of  the  doctrine  of  principal  and  agent.  Indeed,  that 
is,  perhaps,  true  of  the  whole  section  under  consideration. 

*  Grcgorj  v.  Brunswick,  6  Man.  &  G.  205. 


§  3.]  CONSriRACY.  95 

the  spoil.  For  example :  Several  agents,  of  whom  the 
defendant  is  one,  conspire  to  injure  their  common  princi- 
pal, and  succeed ;  the  defendant  is  hable  though  he  derives 
no  benefit  from  the  success.^ 

It  is  equally  well  settled  that  though  there  was  no  inten- 
tion of  making  a  profit  out  of  the  scheme,  but  only  a 
desire  to  harass  and  inflict  loss  upon  the  plaintiff,  the  action 
is  maintainable.  For  example :  The  defendant,  an  attor- 
ney, knowing  that  his  client  has  no  just  claim  against  the 
plaintiff,  mahciousl}"  and*  without  probable  cause,  procures, 
in  concert  with  his  client,  an  arrest  and  civil  prosecution 
of  the  plaintiff.  This  is  a  breach  of  legal  dut}',  and  the 
defendant  is  hable  for  the  injury  sustained  b}'  the  plaintiff.^ 

To  make  a  party  liable  with  others  for  a  conspiracy 
resulting  in  damage,  he  must  either  have  originally  colluded 
with  the  rest,  or  afterwards  joined  them  as  an  associate,  or 
actually  participated  in  the  execution  of  the  scheme.  A 
defendant  cannot  be  found  guilty  by  evidence  of  mere 
silent  observation,  even  with  approval,  of  the  consi:)iracy. 
For  example  :  The  defendant  is  shown  to  have  been  cogni- 
zant of,  and  to  have  (silently)  approved,  the  unlawful 
enticing  away  of  the  plaintiff's  daughter.  This  is  not 
sufficient  to  establish  a  conspirac}^  and  breach  of  dut^' ;  the 
defendant  not  having  thereb}'  become  a  party  to  the  plot.^ 

§  3.  Of  the  Termination  of  the  Prosecution. 

In  the  case  of  an  action  for  a  conspiracy  (carried  out) 
to  maliciouslj'  prosecute  the  pi'esent  plaintiff,  it  must  be 
made  to  appear  that  the  prosecution  has  been  terminated  ; 
the  meaning  of  which  has  been  explained  in  the  chapter 
on  malicious  prosecution.* 

1  Walshara  v.  Stainton,  1  DeG.  J.  &  S.  678.  See,  also,  Stiles  v. 
Wliite,  11  Met.  356;  JerneRan  v.  Wainer,  12  Tex.  189. 

2  Stockley  t'.  Hornridge,  8  Car.  &  P.  11. 

*  Brannock  v.  Bouldin,  4  Ired.  61.  *  Ajite,  pp.  72-77. 


96  DUTIES   OF  INDIVIDUALS  INTEE   SE.     [Chap.  IV 

§  4.    Op  the  Want  of  Puobable  Cause. 

If  the  object  and  result  of  the  conspirac^^  were  to  insti- 
tute a  mahcious  prosecution  against  the  now  plaintiff,  it 
will  be  necessary  for  him  to  show  that  the  prosecution  was 
instituted  without  probable  cause.  The  formation  of  a 
conspiracy  to  prosecute,  though  carried  out  with  malice,  is 
not  sufficient,  since  a  man  may  be  maliciously  prosecuted 
upon  adequate  grounds  ;  ^  and  it  is  not  material  that  a  con- 
spirac}^  was  effected  to  carry  on  the  prosecution.  A  con- 
spiracy, civilly,  is  not  jper  se  an  unlawful  act.^ 

§  5.    Of  Malice, 

The  subject  of  malice  has  been  mentioned  as  connected 
with  an  action  for  conspirac}' ;  but  the  formation  of  a  con- 
spiracy to  do  an  unlawful  act  is  all  that  need  be  proved. 
Malice,  in  the  sense  of  ill-will  and  hostility  to  the  intended 
victim  of  the  conspirac}',  need  not  exist. ^  For  example  : 
The  defendant,  an  attorne}',  prosecutes  the  plaintiff  under 
an  award  offered  him  if  he  will  so  prosecute  for  an  alleged 
offence  against  the  instigator  of  the  prosecution  ;  the  de- 
fendant knowing  that  no  such  offence  had  been  committed. 
This  is  sufficient  evidence  of  malice.^ 

§  6.    Of  Damage. 

The  essence  of  a  conspiracy,  so  far  as  it  justifies  a  cvn\ 
action  for  damages,  is  a  concert  or  combination  to  defraud 

1  Ante,  p.  85. 
—  2  iiutcliins  V.  Ilutclnns,  7  Hill,  104;  s.  c.  Bigelow's  L.  C.  Torts, 
207. 

3  Compare  the  doctrine  of  malice  in  actions  for  malicious  prosecu- 
tion.    Ante,  p.  87. 

*  See  Stocklcy  v.  Hornridge,  8  Car.  &  P.  11,  the  princijjle  of  which 
will  justify  the  example  given.  The  attorney  would  not  be  per- 
mitted in  such  a  case  to  say  that  he  was  acting  under  the  instructions 
of  his  client. 


§  G.]  CONSPIRACY.  97 

or  to  cause  other  unlawful  injur}'  to  person  or  property,  j 
■which  actual!}'  results  in  damage  to  the  person  or  property 
of  the  party  defrauded  or  otherwise  injured.^  A  conspiracy 
to  do  an  unlawful  act  is  not  'a  ground  of  civil  redress  if  it 
do  not  result  in  an  overt  abt  causing  damage. '^  For  exam- 
ple :  The  defendants  are  alleged  to  have  conspired  together 
maliciousl}'  and  without  probable  cause  to  institute,  and  to 
have  instituted,  an  action  against  the  plaintLffin  the  name 
of  a  third  person  for  their  benefit.  No  damage  is  alleged. 
The  plaintiff  cannot  recover.' 

If  the  conspirac}'  result  in  depriving  the  object  of  it  of 
some  benefit  which  he  hoped  and  expected  to  obtain,  but 
over  which  he  had  no  right  or  legal  interest,  he  has  not 
sustained  any  damage  within  the  meaning  of  the  law.  For 
example  :  The  defendants  conspire  to  induce  the  plaintiff's 
father  to  revoke  a  will  in  the  plaintiff's  favor,  and  succeed 
in  obtaining  a  revocation.  The  plaintiff  suffers  no  damage 
in  the  legal  sense.*  Again :  The  defendants  successfully 
conspire  to  cause  the  plaintiff's  debtor  to  convey'  aAvay  his 
property  in  fraud  of^the  plaintiff's  rights  as  a  creditor. 
The  defendants  are  not  liable  in  an  action  for  conspirac}' ; 
the  proper  remedy  (supposing  one  to  exist)  being  by  attach- 
ment under  a  creditor's  bill  to  set  aside  the  conveyance  as 
fraudulent.* 

1  Place  V.  Minster,  65  N.  Y.  89. 
^2  Hutchins  v.  Hutchiiis,  7  Hill,  104;  8.  c.  Bigelow's  L.  C.  Torts, 
207 ;  Kimball  v.  Harman,  34  Md.  407. 

3  Cotterell  v.  Jones,  11  Com.  B.  713. 
"^  *  Hutchins  v.  Hutchins,  sitjira. 

'  Austin  V.  Barrows,  41  Conn.  287.  See  Adler  v.  Fenton,  24  How. 
407  .NLamb  v.  Stone,  11  Pick.  527.  The  case  of  Kimball  v.  Harman, 
34  ild.  407,  is  another  and  different  kind  of  example. 


98  DUTIES  OF  INDIVIDUALS  INTER  SE.    [Chap.  V. 

CHAPTER    V. 

ASSAULT  AND  BATTERY. 

§  1.    Introductory. 

Statement  of  the  duty.  A  owes  to  B  the  duty  to  forbear 
(1)  to  offer  with  force  to  dp  hurt  to  his  person,  within 
reach  ;  or  (2)  to  hit  or  touch  him  in  anger  or  rudeness,  or 
in  the  commission  of  an  unlawful  act,  or  bj  ne§i'-£  e  «  C  6. 

The  subject  of  the  last  chapter  (conspiracj^)  marks  the 
shading  off  of  the  element  of  malice  in  its  various  forms  as 
exhibited  in  the  first  three  chapters  of  the  book,  and  pre- 
pares the  way  for  the  second  class  of  cases  in  which,  for 
the  most  part,  the  matter  of  the  state  of  mind  of  the  de- 
fendant towards  the  plaintiff  becomes  (so  far  as  the  right 
of  action  is  concerned)  immaterial ;  that  is,  the  defendant 
cannot  offer  to  justify  the  act  complained  of  by  alleging 
that  he  did  not  intend  to  commit  it,^  unless  indeed  he  can 
show  that  it  was  compelled,  against  his  will.  The  act 
shows  presumptively  the  intention.  The  law  of  assault  and 
battery,  or  the  duty  above  stated,  is  the  first  subject  for 
examination  under  this  principle. 

§  2.  Of  Assaults. 

An  assault  is  an  attempt,  with  force,  to  do  hurt  to 
another's   person,   within   reaching  distance.'^     It  is   an 

1  The  extent  of  the  damages  may,  however,  be  affected  by  the 
question  of  actual  intent. 

2  The  term,  liowever,  is  loosely  used  in  the  books,  and  often,  but 
inaccurately,  made  to  include  a  battery. 


§  2.J  ASSAULT   AND   BATTERY.  99 

attempt  to  do  harm,  stopping  short  of  actual  execution. 
If  the  attempt  be  carried  out  by  physical  contact,  the  act 
becomes  a  battery ;  but  the  act  is  equally  unlawful  and 
actionable  when  it  stops  with  a  mere  attempt  to  inflict  hurt. 
For  example :  The  defendant,  advancing  in  a  threatening 
attitude  with  the  purpose  of  striking  the  plaintiff,  is  pre- 
\ented  b}^  third  persons  from  carrj-ing  out  his  design  at  a 
moment  when,  but  for  the  interruption,  he  would  presently 
have  struck  the  plaintiff.  This  is  a  breach  of  legal  duty, 
and  the  defendant  is  liable.^ 

It  has  been  said^  that  the  question  of  intention  is  irrele- 
vant in  the  law  of  assault  and  battery ;  but  this  is  true  of 
assault  only  when  the  offence  alleged  was  so  committed  as 
to  show  that  the  plaintiff  had  reason  to  beheve  that  the 
defendant  was  making  an  attempt  to  harm  the  plaintiff's 
person.  If  the  supposed  assault  were  committed  in  such  a 
manner  that  the  plaintiff  must  have  known  that  no  present 
violence  was  intended,  the  act  is  not  unlawful.  For  exam- 
ple :  The  defendant,  on  drill  as  a  soldier,  putting  his  hand 
upon  his  sword,  says  to  the  plaintiff,  "  If  it  was  not  drill- 
time,  I  would  not  take  such  language  from  you."  This  is 
not  an  assault,  since  the  language  used  shows  that  there 
was  no  present  intention  to  commit  that  offence.^ 

If,  however,  the  plaintiff  have  reason  to  beheve  that 
harm  was  intended,  the  defendant  will  be  liable  even  though 
he  did  not  in  fact  intend  to  harm  the  plaintiff.  For  exam- 
ple :  The  defendant  in  an  angr}-  manner  points  an  unloaded 
gun  at  the  plaintiff,  and  snaps  it,  with  the  apparent  pur- 
pose of  shooting.  The  gun  is  known  by  the  defendant  to 
be  unloaded  ;  but  the  plaintiff  does  not  know  the  fact,  and 
has  no  reason  to  suppose  that  it  is  not  loaded.   The  defend- 

"^  1  Stephens  v.  Myers,  4  Car.  &  P.  349 ;  s.  c.  Bigelow's  L.  C.  Torts, 
217. 

2  Supra,  p.  98. 

•  See  Tuberville  v  Savage,  1  Mod.  3. 


100  DUTIES  OF  INDIVIDUALS  INTER   SE.     [Chap.  V. 

ant  is  liable  for  an  assault,  though  he  could  not  have 
intended  any  harm  to  the  plaintiff.^ 

The  parties  must  generally'  have  been  within  reach 
of  each  other,  not  necessarily  within  arm's  reach,  for  an 
assault  ma}'  be  committed  (as  already  appears)  by  means 
of  a  weapon  or  missile  ;  and  in  such  a  case  it  is  onl}'  neces- 
sary that  the  plaintiff  should  have  been  within  certain  reach 
of  the  projectile.  And  even  when  the  alleged  assault  is 
committed  with  the  fist,  it  is  not  necessary  that  the  plain- 
tiff should  have  been  within  arm's  reach  of  the  defendant, 
provided  the  defendant  was  advancing  to  strike  the  plain- 
tiff, and  was  restrained  hj  others  from  carrjing  out  his 
purpose  when  ahnost  within  reach  of  the  plaintiff.  For 
example  :  The  defendant  advances  towards  the  plaintiff  in 
an  angry  manner  with  clenched  fist,  sapng  that  he  will 
pull  the  plaintiff  out  of  his  chair,  but  is  arrested  b}'  a  per- 
son sitting  next  to  the  plaintiff  between  him  and  the  defend- 
ant. The  act  is  an  assault,  though  the  defendant  was  not 
near  enough  to  strike  the  plaintiff.^ 

In  like  manner,  if  the  defendant  should  cause  the  plain- 
tiff to  flee  in  order  to  escape  violence,  he  may  be  guilty  of 
an  assault,  though  he  was  at  no  time  within  reach  of  the 
plaintiff:  it  is  enough  that  flight  or  concealment  becomes 
necessar}'  to  escape  the  threatened  evil.  For  example : 
The  defendant  on  horseback  rides  at  a  quick  pace  after  the 
plaintiff,  then  walking  along  a  foot-path.  The  plaintiff 
runs  away,  and  escapes  into  his  garden  ;  at  the  gate  of 
which  the  defendant  stops  on  his  horse,  shaking  his  whip 
at  the  plaintiff,  now  be^'ond  danger.     This  is  an  assault.^ 

^  1  Beach  v.  Hancock,  27  N.  H.  22.3.  Quare,  if  the  defendant  pre- 
sented a  loaded  pistol  at  the  plaintiff,  saying  he  did  not  intend  to 
shoot,  would  this  be  an  assault?  See  Blake  v.  Barnard,  9  Car.  &  P. 
62G. 

""  2  Stephens  v.  Myers,  4  Car.  &  P.  349 ;  8.  c.  Bigelow's  L.  C.  Torts, 
217. 

8  Mortin  v.  Shappee,  3  Car.  &  P.  373. 


§3.]         ASSAULT  AND  BATTERY.         101 

It  will  be  observed,  from  the  statement  of  the  dtit}- 
which  governs  this  branch  of  the  law,  that  a  mere  assault 
is  a  civil  offence  ;  and  hence  the  person  assaulted  has  a 
right  of  action,  though  he  ma}'  not  have  sufi'ered  an}-  loss 
or  detriment  from  the  offence.  In  such  a  case,  however, 
he  could  (probably)  recover  only  nominal  damages. ■* 

§  3.  Of  Batteries. 

To  hit  or  touch  a  person  in  anger  or  rudeness,  or  in  the 
commission  towards  a  third  person  of  an  unlawful  act,  is 
a  battery.  A  batter}',  therefore,  is  mainly  distinguish- 
able from  an  assault  in  the  fact  that  physical  contact  is 
necessary  to  accomplish  it.  But,  as  the  deUnition  indicates, 
this  contact  need  not  be  effected  by  a  blow :  an}-  forcible 
contact  may  be  sufficient.  For  example  :  The  defendant, 
an  overseer  of  the  poor,  cuts  off  the  hair  of  the  plaintiff, 
an  inmate  in  the  poor-house,  contrary  to  the  plaintiff's 
will,  and  without  authority  of  law.  This  is  a  battery,  and 
the  defendant  is  liable  in  damages.^  Again  :  The  defend- 
ant, in  passing  through  a  crowded  hall,  pushes  his  way 
in  a  rude  manner  against  the  plaintiff.  This  is  also  a 
battery.^ 

It  is  not  necessary  that  the  defendant  should  come  in 
contact  with  the  plaintiff's  body.  It  is  sufficient  if  the 
blow  or  touch  come  upon  the  plaintiff's  clothing.  For 
example  :  The  defendant,  in  anger  or  rudeness,  knocks  off 
the  plaintiff's  hat.  This  is  enough  to  constitute  a  bat- 
teiy.* 

Indeed,  it  is  not  necessary  that  the  plaintiff's  body  or 

^  The  damages  recovered  in  Stephens  v.  Myers,  supra,  were  one 
shilling. 

2  Forde  v.  Skinner,  4  Car.  &  P.  239. 
--  8  Cole  V.  Turner,  6  Mod.  149 ;  s.  c.  Bigelow's  L.  C.  Torts,  218. 

*  Mr.  Addison  gives  this  as  an  example  of  a  battery,  without  cit- 
ing authority ;  but  there  can  be  no  doubt  of  its  correctness.  Addi- 
son, Torts,  571  (4th  Eng.  ed.). 


102  DUTIES  OF  INDIVIDUALS   INTER   BE.      [Chap.  V. 

clothing  be  touched.  To  knock  a  thing  out  of  the  plain- 
tiff's hands,  such  as  a  staff  or  cane,  would  clearly  be  a 
battery ;  and  the  same  is  true  of  the  striking  a  thing  upon 
■which  he  is  resting  for  support,  if  the  effect  be  to  cause  a 
fall  or  concussion  to  the  plaintiff.  For  example :  The 
defendant  strikes  a  horse  upon  which  the  plaintiff  is  riding, 
causing  the  animal  to  plunge  and  throw  the  plaintiff.  This 
is  a  battery.^  Again :  The  defendant  drives  a  vehicle 
against  the  plaintiff's  carriage,  throwing  the  plaintiff  from 
his  seat.  This  also  is  a  battery.^  Again :  The  defendant 
runs  against  and  overturns  a  chair  in  which  the  plaintiff 
is  sitting.     This,  too,  is  a  batteiy.^ 

It  appears  from  the  foregoing  examples  that  it  is  not 
necessary  to  constitute  a  battery  that  the  touch  or  blow  or 
other  contact  should  come  directly  from  the  defendant's 
person.  Indeed,  a  battery  may  be  committed  at  any  dis- 
tance between  the  parties  if  only  some  violence  be  done  to 
the  plaintiff's  person.  The  hitting  one  with  a  stone,  or  an 
arrow,  or  other  missile,  is  no  less  a  battery  than  the  strik- 
ing one  with  the  fist.  It  is  not  necessary  even  that  the 
object  cast  should  do  physical  harm :  the  battery  consists 
in  the  unpermitted  contact,  and  not  in  the  damage.  For 
example  :  The  defendant  spits  or  throws  water  upon  the 
plaintiff.     This  is  a  battery,  though  no  harm  be  done.* 

1  See  Dodwell  v.  Burford,  1  Mod.  24. 

2  Hopper  V.  Reeve,  7  Taunt.  698. 

8  lb.  It  was  held  immaterial  in  this  case  whether  the  chair  or 
carriage  belonged  to  the  plaintiff  or  not. 

*  See  Regina  v.  Cotesworth,  G  Mod.  172 ;  Pursell  v.  Horn,  8  Ad.  & 
E.  002.  A  word  of  explanation  is  necessary  as  to  the  latter  case.  The 
plaintiff  had  sued  for  a  battery  by  throwing  of  water  on  him,  and 
had  failed  to  prove  it,  though  he  proved  certain  consequential  in- 
juries, and  had  a  verdict  for  below  forty  shillings.  The  damages  not 
reaching  forty  shillings,  the  plaintiff  was  not  entitled  to  the  costs 
given  him,  by  reason  of  failing  to  prove  a  battery.  He  now  at- 
tempted to  show  that  he  had  not  sued  for  a  battery  at  all,  or,  if  he 
had,  that  a  battery  had  been  admitted  by   the   defendant's  plea; 


§  3.]  ASSAULT   AND   BATTERY.  103 

A  batteiy  may  be  committed  without  the  least  intention 
to  do  the  plaintiff  harm :  it  may  be  the  result  simply  of 
negligence.  For  example  :  The  defendant,  a  soldier,  han- 
dles his  arms  so  carelessly  in  drilling  as  to  hit  the  plaintiff 
with  them.  This  is  a  battery,  though  the  act  was  not  in- 
tended.^ The  above-mentioned  case  of  the  defendant  run- 
ning into  the  phiintilfs  carriage  is  another  example. - 

Indeed,  a  person  ma}'  be  guilty  of  a  battery  where  his 
act  is  directl}'  caused  b}-  another  person,  provided  the  de- 
fendant was  engaged  at  thci  time  in  an  unlawful  proceeding. 
For  example :  The  defendant,  when  about  to  discharge  a 
gun  unlawfull}'  at  a  third  person,  is  jostled  just  as  the  gim 
is  fired,  and  the  direction  of  the  shot  is  changed  so  as  to 
cause  the  plaintiff  to  be  hit.     This  is  a  battery.^ 

But  while  a  battery  may  be  committed  without  intention, 
it  is  not  to  be  supposed  that  ever}'  unintentional  ph3'sical 
violence  done  to  another  will  constitute  a  battery.  There 
is  no  battery  unless  the  action  of  the  defendant  was  volun- 
tary, or  the  result  of  negligence,  or  of  the  doing  of  some- 
thing forbidden  by  law.  No  man  when  doing  that  which 
is  lawful  is  liable  for  consequences  which  he  could  not  pre- 
vent b}'  prudence  or  care,  though  another  suffer  bodily 
injury  thereby.  For  example :  The  defendant's  horse, 
upon  which  the  defendant  is  lawfully  riding  in  the  highwa}-, 
takes  a  sudden  fright,  runs  away  witli  his  rider,  and  against 
all  the  efforts  of  the  defendant  to  restrain  him,  runs  against 
and  hurts  the  plaintiff.  This  is  not  a  battery  or  other 
breach  of  duty.^ 

which,  if  true,  would  save  him  his  costs  as  given  by  the  jury.  But 
tlie  court  decided  against  liini,  and  cut  down  the  costs  allowed;  tlius 
holding  that  to  tlirow  water  upon  a  person  is  a  battery. 

1  Weaver  v.  Ward,  Hob.  134. 

2  See,  also,  Hall  v.  Fearnley,  3  Q.  B.  919. 

8  See  James  v.  Campbell,  5  Car.  &  P.  372,  where  the  defendant,  in 
fighting  with  another,  liit  the  plaintiff  with  his  fist. 

*  See  Vinecent  v.  Stinehour,  7  Vt.  62,  and  example  cited  by  Wil 
liams,  C.  J. 


104  DUTIES  OF  INDIVIDUALS   INTER   SE.     [Chap.  V. 

And  even  though  the  action  of  the  defendant  was  volun- 
tary (that  is,  intentional) ,  it  will  not  necessarily  constitute 
a  battery.  For  example  :  The  defendant,  walking  near  the 
plaintiff,  suddenly  turns  round,  and  in  so  doing  hits  the 
plaintiff  with  his  elbow.     This  is  not  a  battery.^ 

Nor  is  there  necessarily  a  battery  though  (not  merely 
the  general  action  of  the  defendant,  as  in  the  last  example, 
but)  the  specific  act  of  contact  be  intentional,  for  it  may 
have  been  done  in  sport ;  though  sport  could  doubtless  be 
carried  to  such  an  extreme  as  to  constitute  the  act  a  bat- 
ter^'.  It  is  not  even  a  decisive  test,  alwaj's,  to  inquire 
whether  the  act  was  done  against  the  plaintiff's  will.  The 
plaintiff  may  be  engaged  in  criminal  conduct  at  the  time  ; 
or  he  ma}'  be  13'ing  unconsciously'  in  an  exposed  condition  ; 
or  with  the  best  of  intentions  he  may  be  doing  that  which 
the  defendant  rightly  thinks  dangerous  to  life  or  property'. 
In  the  first  of  these  cases,  an  arrest  of  the  plaintiff  by  lay- 
ing on  of  hands  will  be  justifiable  ;  in  the  second  case,  an 
arousing  or  removal  of  him  will  be  proper ;  and,  in  the 
third,  the  laying  on  of  hands  to  attract  his  attention  is 
lawful.^  In  none  of  these  cases  is  there  a  battery,  though 
the  contact  be  against  the  will  of  the  plaintiff. 

If,  however,  the  act  were  done  in  a  hostile  manner  the 
case  would  be  different ;  ^  and  the  question  whether  the  act 
was  hostile  (probably)  furnishes  the  criterion,  when  the 
same  was  voluntary,  and  not  the  result  of  negligence  or 
other  unlawful  conduct.  In  the  two  latter  cases,  it  matters 
not,  as  has  already  been  seen,  whether  the  act  was  hostile 
or  not. 

A  battery  ma}'  also  be  committed  in  an  endeavor  to  take 
one's  own  property  from  the  wrongful  possession  of  another. 

1  A  case  put  by  Martin,  B.,  on  tlie  argument  in  Coward  v,  BaJ- 
deley,  4  Hurl.  &  N.  478.     See  Brown  v.  Kendall,  6  Cash.  292. 
■^  As  to  the  last  case,  see  Coward  v.  Baddeley,  4  Hurl.  &  N.  478. 
3  lb. 


§  4.]         ASSAULT  AND  BATTERY.         105 

If  the  party  in  possession  should  refuse  to  surrender  the 
property,  the  owner  must  resort  to  the  courts  to  obtain  it, 
or  await  an  opportunity'  to  get  possession  of  it  in  a  peace- 
ful manner.  lie  has  no  right  to  take  it  out  of  the  hands 
of  the  possessor  by  force.  For  example  :  The  defendant, 
finding  the  plaintiff  in  wrongful  possession  of  the  foimer's 
horse,  beats  the  plaintiff,  after  a  demand  and  refusal  to 
give  up  the  animal,  and  wrests  the  horse  from  the  plaintiff's 
possession.     This  is  a  batter}-.^ 

§  4.  Of  Son  Assault  demesne. 

If  the  wrong  complained  of  was  the  immediate  effect  of 
an  unlawful  act  committed  b}-  the  plaintiff,  the  defendant 
may  not  be  liable.  It  is  not,  however,  every  unlawful  act 
that  will  justify  a  battery  or  an  assault.  It  is  unlawful  to 
refuse  to  perform  a  contract  according  to  its  tenor ;  but 
such  an  act  will  not  justify  the  injured  party  in  committing 
an  assault  or  a  battery  upon  the  other.  It  is  unlawful, 
too,  to  make  an  entry  upon  the  lands  of  another  without 
permission  ;  but  the  doing  so  will  not  justify  tlie  occupant 
of  the  premises  in  unnecessarily  doing  bodily  harm  to 
the  trespasser.'^ 

There  are  however  a  few  cases  in  which  a  man  is  entitled 
to  take  the  law  into  his  own  hands  and  inflict  corporal 
injury  upon  another.  Among  these  are  to  be  noticed  the 
right  of  a  parent  to  give  moderate  correction  to  his  minor 
child ;  the  (probable)  right  of  a  guardian  to  do  the  like  to 
a  minor  ward  ;  the  right  of  a  schoolmaster  (when  not  pro- 
hibited by  law  or  school  ordinance)  to  do  the  like  to  his 
scholars ;  the  (possible)  right  of  a  master  to  do  the  like 
to  young  servants ;  and  the  right  of  officers  of  reform,  dis- 

^  Andre  v.  Johnson,  6  Blackf.  375.  See  Suggs  v.  Anderson,  12  Ga. 
461.  But  the  defendant  could  keep  his  horse.  Scribner  v.  Beach,  4 
Denio,  448,  451. 

'i  Bird  V.  Holbrook,  4  Bing.  628. 


106  DUTIES  OF  INDIVIDUALS  INTER  SE.     [Chap.  V. 

cipline,  or  correction,  to  do  the  like  towards  the  refractory 
who  have  been  committed  to  their  charge. 

Aside  from  cases  of  one  of  these  classes,  the  right  to  do 
that  which  would  otherwise  amount  to  an  assault  or  a  bat- 
tery is  confined  to  two  or  three  cases,  all  of  which  are 
included  under  the  term  son  assault  demesne.  This  is  an 
old  law-French  expression,  signifying  that  the  assault  or 
battery  alleged  by  the  plaintiff  was  his  own  act,  or  rather 
was  the  effect  of  his  own  act.  A  person  cannot  be  liable 
for  an  act  which  he  himself  has  not  committed  or  caused, 
either  personally  or  b}'  another  authorized  to  act  for  him. 
Hence  if  the  plaintiff  himself  caused  the  act  complained  of, 
the  defendant  cannot  be  liable  to  him  for  it. 

The  first  case  to  be  noticed  in  which  the  justification  of 
son  assault  demesne  is  allowed,  is  where  the  plaintiff  him- 
self began  an  attack  upon  the  defendant.  The  right  of 
self-defence  is  sanctioned  as  well  b}'  the  municipal  law  as 
by  the  law  of  nature.  And  the  right  extends  to  the  use  of 
ph^-sical  force  in  the  protection  of  property*  as  well  as  of 
the  person  of  the  defendant,  provided  the  property  be  at 
the  time  in  the  defendant's  possession.  No  one  has  a  right, 
except  under  authority  of  law,  to  seize  ujion  property  of 
which  the  owner  is  in  possession,  and  he  does  so  at  the  risk 
of  sustaining  bodily  violence  in  the  act.  For  example : 
The  plaintiff,  a  creditor  of  the  defendant,  seizes  the  defend- 
ant's horses  (which  the  latter  is  using)  for  the  purpose  of 
obtaining  satisfaction  of  his  debt.  The  defendant  resists 
and  strikes  the  plaintiff.  He  is  not  hable  if  he  did  not 
exceed  the  bounds  of  defence.^ 

If  the  owner  or  person  entitled  to  possession  was  out  of 
possession  at  the  time  of  committing  the  alleged  assault  or 
battery,  he  will  not  be  permitted  to  say,  by  way  of  defence, 
that  the  plaintiff  caused  the  assault  by  having  previously 

1  See  Cluff  V.  Mutual  Ben.  Life  Ins.  Co.,  13  Allen,  308;  s.  c  99 
Mass.  317. 


§  4.1  ASSAULT    AND   BATTERY.  107 

taken  wrongful  possession,  or  bj  having  wrongfully  de- 
tained, the  defendant's  property.  Such  is  not  a  case  of  sow 
assault  demesne^  as  the  example  alread}'  given  of  the  horse 
taken  from  the  plaintiff's  possession  by  violence  shows. ^ 

And  though  a  trespasser  should  make  an  assault  upon 
the  owner  of  property',  and  seek  to  take  it  out  of  the  own- 
er's possession,  the  owner  is  allowed  to  use  no  greater  force 
in  resisting  the  unlawful  act  than  may  be  necessary  for  the 
defence  of  his  possession.^  If  he  should  repl}'^  to  the  tres- 
passer's attempt  with  a  force  disproportionate  to  the  prov- 
ocation, the  act  will  tiien  be  his  own  battery,  and  not  the 
plaintiff's ;  or  in  the  technical  language  of  pleading,  the 
plaintiff  can  then  reply  to  the  defendant's  plea  of  son  assault 
demesne^  that  the  tort  was  de  injuria,  sua  propria^  —  the 
defendant's  own  wrong.  For  example :  The  defendant, 
owner  of  a  rake  which  is  in  his  own  hands,  knocks  the 
plaintiff  down  with  his  fist,  upon  the  plaintiff's  taking  hold 
of  the  rake  to  get  possession  of  it.  The  defendant  is  liable.^ 
Again  :  The  defendant  strikes  the  plaintiff  repeated  blows, 
knocking  her  down  several  times,  upon  her  refusal  to  quit 
the  defendant's  house.    The  plaintiff  is  entitled  to  recover.'* 

Nor  is  it  lawful  for  the  owner  of  propert}',  in  defence  of 
his  possession,  to  make  an  attack  upon  the  trespasser  with- 
out first  caUing  upon  hun  to  desist  from  his  unlawful  pur- 
pose, unless  the  trespasser  is  at  the  time  exercising  violence. 
In  the  example  last  given,  the  defendant  would  have  been 
liable  for  a  mere  hostile  touch  had  he  not  first  requested 
the  plaintiff  to  leave  his  premises  ;  unless  she  had  entered 
his  premises  with  force.^ 

1  Ante,  p.  105. 

2  The  allow.able  force  in  such  a  case  is  expressed  by  the  words  of 
the  old  pleading  molliter  manus  imposuit,  —  the  defendant  gently  laid 
hia  hands  upon  the  plaintiff. 

8  Scrihner  v.  Beach,  4  Denio,  448. 

*  Gregory  v.  Hill,  8  T.  R.  299.         ^  See  Scribner  v.  Beach,  supra. 


108  DUTIES  OF  INDIVIDUALS  INTER   SE.      [Chap.  V. 

In  the  next  place,  it  is  to  be  observed  that  a  person  ma}' 
not  only  exercise  a  reasonable  degree  of  defence  to  his  own 
person,  and  to  the  possession  of  his  own  property,  but  he 
may  do  the  same  towards  the  members  of  his  own  family 
when  attacked  ;  ^  and  perhaps  also  towards  the  inmates  of 
a  house  at  which  he  is  then  receiving  hospitality.  Certain 
it  is,  that  a  servant  may  justif}'  a  batter}^  as  committed  in 
defence  of  his  master ;  ^  that  is,  he  maj  do  any  thing  in 
his  master's  defence  which  his  master  himself  might  do. 
And,  on  the  other  hand,  notwithstanding  some  doubts  in 
the  books,  a  master  ma}'  justify  a  battery  as  committed  in 
defence  of  his  servant.  For  example  :  The  plaintiff  attacks 
the  defendant's  servant,  whereupon  the  defendant  assists 
his  servant  to  the  extent  of  repeUing  the  attack,  and  no 
further.     Tl^e  defendant  is  not  hable.^ 

A  person  may  also  justify  the  use  of  a  proper  amount  of 
physical  force  as  rendered  in  quelling  a  riot  or  affray  at  the 
instance  of  a  constable  or  other  officer  of  the  peace,*  or 
perhaps  of  his  own  motion,  when  no  officer  is  present. 

§  5.  Of  Violence  to   or   towards   One's   Servants  or 

Assistants. 

It  will  have  been  observed  that  a  double  breach  of  duty 
may  be  committed  by  the  same  assault  or  battery  ;  one  to 
the  immediate  person  to  whom  the  violence  is  done,  and 
where  such  person  is  a  servant  or  assistant  (including  child, 
husband,  or  wife) ,  another  breach  to  the  person  whom  he 
or  she  was  serving  or  assisting.  It  follows  that  each  has 
a  right  of  action  against  the  wrong-doer  in  respect  of  the 
breach  of  his  own  individual  right ;  the  servant  or  assistant 
for  the  violence  (that  is,  for  the  assault  or  battery),  and 

1  1  Black.  Com.  429. 

2  lloeve,  Domestic  Rel.  538  (3d  ed.). 
«  Tickell  V.  Head,  Lofft,  215. 

*  Year  Book,  19  Hen.  6,  pp.  43,  56;  Bigelow's  L.  C.  Torts,  270. 


§  5.]  ASSAULT   AND   BATTERY.  109 

its  proper  consequences,  and  the  master  (including  parent, 
husband,  or  wife) ,  for  the  loss  of  sen'ice  or  assistance. 

There  will  be  this  difference,  however,  between  the  rights 
of  action  of  the  master  and  the  servant  (using  these  tenns 
generically) ,  that  the  latter  will  be  entitled  to  recover  judg- 
ment for  the  mere  assault  and  battery,  though  no  damage 
were  actually  inflicted ;  while  the  former  will  be  entitled  to 
judgment  only  in  case  he  can  prove  either  (1)  that  the  vio- 
lence committed  was  such  as  to  disable  the  person  who  sus- 
tained it  from  rendering  the  amount  of  aid  which  he  or 
she  was  able  to  render  before  the  act  complained  of;  or  (2) 
that  such  person  was,  bj*  reason  of  the  violence,  caused  to 
depart  from  or  abandon  the  service  or  abode  of  the  plain- 
tift'.^  That  is,  the  master  must  have  sustained  an  actual 
damage  ;  ^  but,  if  he  has  thus  been  injured,  he  is  entitled  to 
recover  therefor,  even  though  the  defendant's  act  consisted 
only  in  violent  demonstrations.  For  example :  The  de- 
fendants, by  menaces  and  angry  demonstrations  against 
the  plaintiff's  servants,  shoemakers,  cause  them  to  leave 
and  abandon  the  plaintifi"s  sen-ice.  The  defendants  are 
liable  ;  though  no  bodily  violence  was  committed  upon  the 
servants.^ 

In  regard  to  the  master's  right  of  action,  it  matters  not 
how  slight  the  services  may  be  which  the  servant  could 
render :  if  he  could  render  an}',  and  has  been  disabled  or 
driven  awa}',  the  master's  rights  have  been  violated,  and 
the  wrong-doer  is  liable  to  him.    For  example :   The  de- 

1  The  authorities  upon  this  subject  are  mostly  ancient,  but  they 
are  still  law.     See  Bigelow's  L.  C  Torts,  22G,  227. 

-  In  the  case  of  an  assault  or  battery  upon  one's  wife,  the  hus- 
band at  common  law  joined  in  the  action ;  but  the  real  right  of  action 
lay  in  the  wife.  And,  in  times  of  servitude,  the  master  could  per- 
haps sue  for  an  assault  or  battery  committed  upon  his  villein,  even 
though  the  former  sustained  no  damage.     L.  C.  Torts,  227. 

8  Year  Book,  20  Hen.  7,  p.  5,  stated  in  Bigelow's  L.  C.  Torts, 
226 ;  and  compare  Walker  v.  Cronin,  107  Mass.  555. 


110  DUTIES   OF   INDIVIDUALS  INTER  SE.      [Chap.  V. 

fendant  commits  an  assault  and  battery  upon  the  plain- 
tiff's daughter,  and  disables  her  from  servang  at  the  head 
of  his  table,  as  she  has  been  accustomed  to  do. ,  The 
plaintiff  is  entitled  to  recover  for  the  loss  of  sersdee.^ 

The  plaintiff  must,  however,  either  have  been  entitled  to 
require  the  services  of  the  party  assaulted  or  beaten,  or  he 
must  have  been  in  the  actual  enjoyment  of  them,  if  they 
were  gratuitous.  A  parent  cannot  maintain  an  action  for 
an  assault  or  a  battery  committed  upon  his  child  after  the 
child's  majority,  unless  he  or  she  was  then  actually  in 
the  parent's  service  ;  nor  could  the  parent  maintain  an 
action  for  such  an  injury  committed  upon  his  child 
during  the  child's  minority,  if  the  parent  had  in  any 
way  divested  himself  of  the  right  to  require  his  child's 
services.'^ 

It  is  laid  down  that  only  the  parties  to  a  contract  (and 
their  successors  in  right)  can  maintain  an  action  for  a 
breach  thereof;  and  hence  that  if,  in  the  course  of  per- 
forming a  contract  made  with  a  serv-ant,  the  other  party 
thereto  commit  a  batter}-  upon  the  sen-ant,  which  battery 
is  a  breach  of  the  terms  of  the  contract,  the  master  has  no 
right  of  action  for  his  loss  of  serAice.  For  example :  The 
defendants,  common  carriers  of  passengers,  are  paid  by 
the  plaintiff's  servant  for  safe  passage  from  A  to  B.  On 
the  way,  the  serv-ant  is  severe I3-  bruised,  wounded,  and 
injured  by  reason  of  the  failure  of  the  defendants  to  carry 
him  safely  according  to  their  agreement ;  and  the  plaintiff 
thereby  loses  the  injured  person's  ser\-ice  for  a  period  of 
nineteen  weeks.     The  plaintiff  is  deemed  not  entitled  to 

'  The  following  cases,  though  actions  for  seduction,  will  justify 
this  example :  Bennett  v.  Allcott,  2  T.  R.  1G6 ;  Maunder  v.  Venn, 
Moody  &  M.  323  ;  Thompson  v.  Ross,  5  Hurl.  &  N.  16. 

■^  Questions  of  this  sort  have  generally  arisen  in  actions  for  seduc- 
tion ;  and,  since  the  subject  must  be  elsewhere  fully  examined,  it  need 
not  be  further  pursued  at  present.     See  Chapter  7. 


§  5.]         ASSAULT  AND  BATTERY.         Ill 

recover ;  the  injury  being  the  result  of  a  breach  of  contract 
with  the  servant.^ 

The  reason  on  which  this  doctrine  rests  is  technical  in 
the  extreme,  and  its  soundness  is  questionable.  The  effect 
of  it  is,  that,  b}'  entering  into  a  contract  with  a  third  per- 
son, a  party  can  throw  off  the  duty  which  he  previously 
owed  to  another,  without  the  latter's  consent.  Besides,  if 
the  existence  of  the  contract  were  a  sound  objection  to  the 
action  by  the  master  in  such  a  case  as  that  stated,  it  would 
follow  that  the  master  would  be  in  a  worse  condition  when 
his  servant  paid  his  fare,  than  he  would  be  if  the  carrier 
had  invited  the  servant  to  go  the  journey  with  him  gratis  ; 
for,  no  contract  having  been  made  with  the  servant,  the 
can-ier's  duty  to  the  master  would  continue. 

It  may,  however,  be  doubted  if  there  can  be  a  breach  of 
dut}'  of  this  kind,  if  of  any  kind,  when  the  wrong-doer  has 
no  notice  of  the  existence  of  the  right  alleged  to  have  been 
violated.  The  dut}^  to  a  master  should  depend  upon  notice 
that  the  person  beaten  is  a  servant.  A  person  is  bound 
for  the  consequences  of  his  acts  only  in  so  far  as  he  could 
foresee  their  effects  as  reached  in  the  natural  and  usual 
course  of  things.  Such  consequences  he  is  said  to  intend  ; 
and,  intending  them,  he  is  liable  for  them.  Further  than 
this,  his  liability  cannot,  according  to  established  principles 
of  law,  be  carried.  Upon  this  ground,  therefore,  the  car- 
rier, in  the  example  given,  would  not  be  liable  ;  supposing 
him  not  to  have  notice  of  the  plaintiff's  rights.^ 

1  Alton  V.  Midland  Ry.  19  Com.  B.  n.  s.  213;  s.  c.  15  Jur.  n.  s.  672  ; 
Fairniount  Ry.  Co.  v.  Stutler,  64  Penn.  St.  375. 

■■^  It  is  true,  the  precedents  of  declarations  by  the  master  contain 
no  allegation  of  notice  of  his  rights  on  the  part  of  the  defendant ;  but 
it  is  to  be  observed  that  the  precedents  given  in  the  books,  and 
nearly  all  of  the  cases,  are  such  as  to  show  that  the  defendant  in 
fact  had  such  notice.  The  defendant  is  alleged  to  have  assaulted  a 
child,  or  to  have  menaced  and  driven  away  a  servant  from  the  per- 
formance of  his  services.     Hence  the  omission  of  the  allegation  is 


112  DUTIES   OF  INDIVIDUALS  INTER  SE.      [Chap.  V. 

By  the  common  law,  rights  of  civ'il  action  for  injuries 
done  to  the  person  (and  indeed  all  rights  of  action  ex  delicto^ 
excepting  for  the  wrongful  taking  or  detention  of  propert}') 
cease  with  the  death  of  the  party  injured.^  It  is  accord- 
ingly laid  down  in  the  old  books  that  if  a  servant  or  assist- 
ant (including  a  child,  wife,  or  husband)  were  so  beaten 
that  he  died,  the  master  (using  this  term  generically)  had 
no  right  of  action  against  the  wrong-doer.  This,  however, 
is  not  now  universally  considered  to  be  tlie  law.  The  rule 
that  the  action  dies  with  the  death  of  the  injured  party  ^ 
permits  at  all  events  an  action  b}'  the  master  for  damages 
between  the  time  of  the  injur}-  of  the  servant  and  his  death, 
where  death  was  not  immediate  ;  and  recent  authority  has 
gone  still  further.^  It  may  be  added  that  statutes  have 
been  quite  generally  passed  granting  a  riglit  of  action  to 
the  next  immediate  kin  of  the  deceased. 

not  inconsistent  with  the  suggestion,  supra.  It  is  worthy  of  mention 
that  in  actions  for  enticing  away  servants,  per  quod  servitium  ainisit 
magister,  it  is  necessary  for  tlie  plaintiff  to  allege  notice  of  the  relation 
of  master  and  servant.  See  Blake  v.  Lanyon,  6  T.  E.  221 ;  post,  Cli. 
7,  §2. 

1  Or  of  the  wrong-doer. 

2  Actio  personalis  moritur  cum  persona. 

8  Sullivan  v.  Union  Pacific  R.  Co.,  1  Cent.  L.  J.  595,  where  a 
father  was  held  entitled  to  recover  for  the  death  of  his  minor  child, 
with  damages  for  his  loss  of  service  until  the  child  would  have 
attained  his  majority.  The  cnses,  Englisli  and  American,  are  there 
reviewed.     See  also  2  Soutliern  Law  Rev.  n.  s.  186.   [  V 

I    ) 


§  2.1  FALSE  IMTRISONMENT.  113 


CHAPTER  VI. 

FALSE  IMPRISONMENT. 

§  1.   Introductory. 

Statement  of  the  duty.  A  owes  to  B  the  duty  to  forbear 
to  impose  without  authority  of  law,  and  against  his  will,  a 
total  restraint  upon  his  freedom  of  locomotion. 

OBSERVATIONS. 

1.  The  tei-ms  "writ,"  "warrant,"  "precept,"  and 
"  process,"  are,  in  this  chapter,  used  s3'nonymousl3'. 

2.  The  term  "  in-egular,"  as  applied  to  a  wTit,  refers  to 
some  improper  practice  on  the  part  of  the  person  who 
obtains  the  writ.  But  inasmuch  as  a  writ  is  sometimes 
absolutel}'  void  for  irregularit}^^  and  sometimes  only 
voidable,  and  the  result  is  to  make  two  sets  of  rules  of 
law  with  regard  to  iVregular  writs  ;  and  especially  because 
the  term  is  sometimes  loosely  applied  in  the  books,  —  its 
use  will  here  be  omitted  as  far  as  possible. 

3.  B^^  the  term  ''mesne  process"  is  meant  all  process 
that  issues  in  the  course  of  the  conduct  of  a  cause  between 
the  primar}'  ;p|ocess  with  which  the  suit  begins  and  the 
final  process  with  which  it  ends. 

§  2.    Of  the  Nature  of  the  Restraint. 

A  false  imprisonment  consists  in  the  total,  or  substan- 
tially total,  restraint  of  a  man's  freedom  of  locomotion, 
without  authority  of  law,  and  against  his  will.     Such  an 

^  As  a  writ  in  execution  of  a  judgment  whicli  has  been  dis- 
charged to  the  knowledge  of  tlie  person  suing  out  the  same.  Deyo 
V.  Van  Valkenburgh,  5  Hill,  242. 

8 


114  DUTIES  OF  INDIVIDUALS  INTER  SE.     [Chap.  VI 

act  may  be  committed  not  onl}^  by  placing  a  man  within 
prison  walls,  but  also  by  restraint  imposed  upon  him  in  his 
own  house  or  room,  or  in  the  highwaj-,  or  even  in  an  open 
field.^ 

Any  general  restraint  is  sufficient  to  constitute  an  im- 
prisonment ;  and  though  this  be  effected  without  actual 
contact  of  the  person,  it  will  be  actionable  if  unlawful. 
Any  demonstration  of  pliA'sieal  ^'iolence  which,  to  all 
appearance,  can  be  avoided  onl}'  by  submission,  operates 
as  effectually  to  constitute  an  imprisonment,  if  submitted 
to,  as  if  contact  and  force  had  been  exercised.  For 
example :  The  defendant  says  to  the  plaintiff,  ' '  I  want 
you  to  go  along  with  me,"  with  a  show  of  authority  or  of 
determination  to  compel  the  plaintiff  to  go.  This  is  an 
imprisonment,  though  the  defendant  do  not  touch  the 
plaintiff.^ 

A  person  may  also  be  imprisoned,  though  he  had  not 
the  full  power  of  locomotion  before  the  restraint  was 
imposed.  It  appears  to  be  sufficient  if  his  will  has  been 
so  overcome  that  he  would  not  attempt  to  escape  the 
restraint  if  he  had  the  physical  abilitj"  of  locomotion.  For 
example :  The  defendant,  a  creditor  of  the  plaintiff,  goes 
with  an  officer  to  the  plaintiff's  house,  in  order  to  compel 
him  to  give  securitj'  or  satisfaction  of  his  debt,  which  was 
not  due.  The  plaintiff  is  found  sick  in  bed ;  whereupon 
the  officer  tells  him  that  they  have  not  come  to  take  him, 
but  to  get  a  certain  article  of  property  belonging  to  the 
plaintiff,  though,  if  he  11  not  deliver  that  or  give  security, 
they  must  take  him  or  ^eave  some  one  in  charge  of  him. 
The  plaintiff,  much  alarmed,  gives  up  the  article.  This  is 
an  imprisonment.' 

1  Lib.  Ass.  (22  Edw.  3),  p.  104,  pi.  85,  a  very  old  case,  but  good 
law. 

2  Brushabcr  v.  Stcgeman,  22  Mich.  266. 
■"8  Grainger  i-.  Hill,  4  Biiig.  N.  C.  212. 


§  3.]  FALSE  IMPRISONMENT.  115 

The  submission,  therefore,  to  the  threatened  and  rea- 
sonably apprehended  use  of  force  is  not  to  be  considered 
as  a  consent  to  the  restraint.^  And  the  imprisonment 
continues  until  the  part}'  is  allowed  to  go  where  he  pleases, 
and  is  involuntar}'  until  all  effort  at  restraint  ceases,  and 
the  means  of  effecting  it  are  removed.^ 

It  is  not  enough  that  restraint  is  imposed  upon  one's 
freedom  of  proceeding  in  a  particular  desu-ed  direction. 
The  detention  must  be  such  as  to  cause  escape  in  any 
direction  to  amount  to  a  breach  of  the  restraint ;  except, 
perhaps,  where  the  only  avenue  of  escape  not  guarded  is 
an  almost  impassable  one.  For  example  :  The  defendant, 
an  officer,  stationed  at  a  particular  point  to  prevent  per- 
sons from  passing  in  a  certain  direction,  restrains  the 
plaintiff  from  passing  that  way,  but  leaves  another  way 
open  to  him,  of  which,  however,  he  does  not  wish  to  avail 
himself;  and,  thus  detained,  the  plaintiff  stands  there  for 
some  time.     This  is  not  an  imprisonment.^ 

It  follows  from  the  last  proposition,  and  from  what  had 
been  stated  before,  that  a  person  detained  within  walls  is 
none  the  less  imprisoned  by  reason  of  the  fact  that  he  may 
make  an  escape  through  an  unfastened  window  or  door ; 
since  such  an  act  would  be  a  breach  of  the  restraint.  K 
it  would  not  be,  there  is  no  imprisonment ;  supposing  that 
the  unfastened  door  or  window  affords  a  read}'  means  of 
escape. 

§  3.  Of  Arrests  wt      Warrant. 

Supposing  the  restraint  imposed  to  amount  to  an  impris- 
onment, it  is  to  be  noticed  that  the  imprisonment  must  be 
a  false  one,  that  is,  it  must  be  an  illegal  restraint  of  free- 

1  Within  the  maxim  volenti  non^fit  injuria. 

2  Johnson  v.  Tompkins,  Baldw.  601. 
^  8  Bird  V.  Jones,  7  Q.  B.  742. 


116         DUTIES   OF  INDIVroUALS  INTER  SE.     [Chap.  VI. 

dom,  in  order  to  constitute  it  a  breach  of  dutj'.  Under 
what  circumstances,  then,  is  an  imprisonment  illegal? 

Not  to  attempt  to  give  all  possible  special  answers  to 
this  question,  it  may  be  comprehensivel}^  said  that  the 
restraint  is  lawful  (1)  whenever  expressl}-  commanded  by 
due  authority  of  law,  and  (2)  whenever  impliedly  com- 
manded or  authorized  by  law. 

The  most  common  illustration  of  an  imprisonment  of  the 
first  kind  is  where  a  person  has  been  arrested  Iw  an  officer 
of  the  law  under  a  warrant  issued  from  a  competent  judi- 
cial tribunal.  The  arrest  in  such  a  case,  though  the  writ 
was  erroneously  issued,  is  a  justification,  since  it  was  made 
under  a  command  which  the  officer  has  no  right  to  disobey. 
In  England,  this  justification  of  the  officer  is  founded  on 
statutory  law; '  but  the  statute  was  passed  before  the  Ameri- 
can revolution,  and  is  perhaps  in  force  in  this  country. 
At  all  events,  the  American  law  conforms  to  its  provisions. 
By  the  old  common  law,  an  officer  who  executed  the  war- 
rant of  a  magistrate,  such  as  a  justice  of  the  peace,  was, 
it  is  said,  answerable  for  the  consequences  in  all  cases,  if 
the  magistrate  acted  without  authorit3\  The  Act  of  Par- 
liament referred  to  was  passed  to  relieve  him  from  that 
hardship,  and  to  provide  that,  except  in  cases  to  be  men- 
tioned, if  he  acted  strictly  in  obedience  to  the  warrant,  he 
should  be  protected. 

Before  proceeding  to  consider  the  effect  of  an  arrest 
upon  a  warrant  improperlj^  granted,  it  is  to  be  observed 
that  (supposing  the  writ  to  have  been  properl}'  issued)  the 
officer,  in  executing  his  precept,  must  arrest  the  person 
named  in  it.  If  he  do  not,  though  the  arrest  of  the  wrong 
person  was  made  through  pure  mistake,  it  is  a  case  of  false 
imprisonment.  And  this  appears  to  be  true,  though  the 
party  arrested  bear  the  same  name  as  the  party  against 
^hom  the  writ  is  directed.  For  example  :  The  defendant, 
1  24  Geo.  2,  c.  44. 


§  3.]  FALSE   IMrRISONMENT.  117 

a  constable,  asks  the  plaintiff  if  his  name  is  J.  D.,  to  which 
the  plaintiff  replies  in  the  affirmative  ;  whereupon  the  de- 
fendant takes  the  plaintiff  into  custod}',  the  plaintiff  not 
being  the  person  intended  by  the  writ.  This  is  a  case  of 
false  imprisonment.^ 

If,  however,  the  plaintiff,  though  not  the  person  intended 
by  the  writ,  should  intentionally  do  an}^  thing  to  mislead 
the  officer,  and  cause  the  latter  to  believe  that  the  former 
was  the  person  meant  by  the  precept,  the  officer  commits 
no  breach  of  duty  in  making  the  arrest.  The  plaintiff's 
action  is  a  consent,  and  something  more.  For  example : 
The  defendant,  a  sheriff,  aiTests  the  plaintiff  under  process 
of  court,  upon  a  representation  made  by  her  that  she  was 
E.  M.  D.,  and  the  person  against  whom  the  writ  had  issued  ; 
with  the  intention  of  procuring  the  defendant  to  arrest  her 
under  his  writ.  The  defendant,  believing  the  representation 
to  be  true,  makes  the  arrest.    This  is  not  a  breach  of  duty.^ 

The  officer's  writ,  however,  should  so  describe  the  per- 
son to  be  arrested  that  he  ma_y  know  whom  to  arrest ;  or, 
rather,  that  a  person  whom  he  proposes  to  arrest  may 
know  M'hether  to  resist  or  submit.  If  the  warrant  be  de- 
fective in  this  particular,  the  officer  acts  at  his  peril  in 
serving  it ;  and  he  will  be  liable  to  au}'  one  whom  he  may 
arrest  under  it.  For  example :  The  defendant,  a  con- 
stable, arrests  the  plaintiff  under  a  writ  reciting  the  com- 
mission of  a  felony  by  John  R.  M.,  and  then  commanding 
the  officer  to  arrest  the  said  William  M.  The  defendant  is 
liable  for  false  imprisonment,  though  the  plaintiff  is  the 
person  intended.^ 

^  Coote  V.  Lighworth,  F.  Moore,  457.  It  is  to  be  noticed  that  the 
plaintiff  in  this  case  chd  nothing  to  induce  the  ofScer  to  arrest  liim  as 
the  person  intended. 

2  Dunston  v.  Paterson,  2  Com.  B.  n.  s.  495.  The  sheriff,  however, 
had  detained  the  plaintiff  improperly  after  discovering  his  mistake, 
and  for  this  he  was  held  liable. 

3  Miller  v.  Foley,  28  Barb.  030. 


118  DUTIES   OF  INDIVIDUALS   INTER  SE.     [Chap.  VI 

It  follows  that  the  officer  may  be  hable  if  there  be  a 
misnomer  in  the  warrant  of  the  person  intended,  though 
the  person  actually  meant  was  arrested,  and  that,  too,  (in 
other  respects)  on  legal  grounds.  For  example :  The 
defendants  cause  the  plaintiff,  whose  name  is  Eveline,  to 
be  arrested  under  the  name  of  Emehne  in  the  warrant. 
This  is  a  breach  of  duty,  though  the  plaintiff,  in  her  proper 
name,  was  legally  liable  to  such  an  arrest.^  But  the  case 
would  have  been  different  had  the  plaintiff  been  known 
alike  b}'  either  name.'^ 

The  officer  also  loses  the  protection  of  his  precept  if  he 
fail  to  act  in  accordance  with  the  duty  enjoined  by  it.  He 
must  follow  the  tenor  of  his  writ,  and  not  surpass  his 
authority.  For  example  :  The  defendant  aiTests  the  plain- 
tiff beyond  the  precincts  named  in  the  writ.  This  is  a  false 
imprisonment.^ 

It  is  further  to  be  noticed  that,  though  the  wi-it  and 
an-est  be  valid,  the  protection  of  the  officer  may  be  lost  by 
oppressive  or  cruel  conduct.  For  example :  The  defend- 
ant, charged  with  a  writ  simpl}'  to  take  the  bod}'  of  the 
plaintiff,  unites  with  the  person  at  whose  instance  the 
arrest  is  made  in  illegally  extorting  money  from  the  plain- 
tiff, by  working  upon  his  fears.  The  defendant  is  hable 
for  a  false  imprisonment.* 

The  officer's  protection  may  also  be  lost  by  a  detention 
after  the  warrant  has  expired.  The  warrant,  however 
valid  at  first,  will  not  justif}-  such  an  act.  If  the  officer 
have  reason  for  holding  the  prisoner  after  the  expiration  of 
the  warrant,  he  must  procure  a  new  writ.  He  can  hold  the 
prisoner  only  for  a  reasonable  time  before  his  examina- 

1  Scott  V.  Wliite,  4  Wend.  555. 

2  Oris  wold  v.  Sedgwick,  1  Wend.  128. 

8  This  is  too  fundamental  to  have  been  much  agitated  in  the 
court3.     No  authority  is  needed  for  the  example. 
*  Holley  V.  Mix,  3  Wend.  350. 


§  3.]  FALSE  IMPEISONMENT.  119 

tion  :  after  that  time,  the  warrant  (that  is,  the  original  war- 
rant of  arrest)  loses  its  vitalit}'.  For  example :  The 
defendant  arrests  the  plaintiff,  and  takes  him  before  a  mag- 
istrate on  a  charge  of  larceny,  detaining  him  for  a  period 
of  three  daj's,  in  order  that  the  party  whose  goods  had 
been  stolen  might  have  an  opportunity  to  collect  his  wit- 
nesses and  prove  the  crime.  This  is  a  false  imprisonment, 
the  detention  being  unreasonable.^ 

When  an  arrest  has  been  made  upon  a  vahd  writ,  the 
officer  may  detain  the  prisoner  on  any  number  of  other 
YaUd  writs  which  he  has  at  the  time,  or  which  may  after- 
wards, during  the  detention,  reach  him.  But  if  the  officer 
make  the  arrest  on  a  void  writ,  or  in  an  otherwise  illegal 
manner,  he  has  no  right  to  detain  the  party  on  any  valid 
writ  which  may  be  in  his  hands ;  for  the  officer,  upon  a 
principle  elsewhere  stated,  cannot  avail  himself  of  a  custody 
effected  by  illegal  means  to  execute  valid  process.'^  The 
prisoner  should  first  be  permitted  to  go  at  large,  and  then 
arrested  under  the  valid  writ.  For  example  :  The  defend- 
ant improperly  arrests  the  plaintiff  without  a  warrant,  and 
while  holding  him  in  custody  deUvers  him  to  an  officer. 
The  defendant  afterwards  receives  a  valid  writ  for  the 
plaintiff's  arrest  from  an  officer  who  held  it  at  the  time  of 
the  arrest.  The  plaintiff  has  a  right  of  action  for  a  false 
imprisonment.^ 

The  principle  to  be  derived  from  the  cases  (to  restate  this 
important  doctrine  in  the  language  of  the  courts  *)  is,  then, 
that  where  the  officer  legally  arrests  the  party  in  one  action, 
the  arrest  operates  virtually  as  an  arrest  in  all  the  actions 

1  Wright  V.  Court,  4  Barn.  &  C.  596.  The  prisoner  should  have 
been  taken  before  a  magistrate  at  once. 

2  Hooper  v.  Lane,  6  H.  L.  Cas.  443. 
8  Barratt  v.  Price,  9  Bing.  566. 

*  Tindall,  C.  J.,  in  Barratt  v.  Price,  and  Williams,  J.,  in  Hooper  v. 
Lane,  supi-a. 


120  DUTIES   or   INDIVIDUALS  INTER  BE.     [Chap.  VI 

in  which  the  officer  holds  writs  against  him  at  the  time  ; 
for  it  would  be  an  idle  and  useless  ceremony  to  arrest  the 
party  in  the  other  cases.  And  this  detainer  will  hold  good, 
though  the  court  ma}',  upon  collateral  gi'ounds,  uncon- 
nected with  the  act  of  the  officer,  order  the  partj-  to  be 
discharged  from  the  first  arrest.  But  where  the  officer  has 
illegalh'  an-ested  the  party,  he  is  not  in  custodj'  under  the 
first  writ,  but  is  suflTering  a  false  imprisonment ;  and  such 
false  imprisonment,  being  no  ai'rest  in  the  original  action, 
cannot  operate  as  an  arrest  under  the  other  wi'its  in  the 
officer's  hands. 

It  is  important,  in  the  next  place,  to  inquire  into  the 
right  of  an  officer  to  retake  a  prisoner  mider  the  original 
wan-ant,  after  an  escape.  It  is  clear  that  if  the  escape 
was  made  without  the  consent  of  the  officer,  while  the  wiit 
was  still  in  force,  the  prisoner  ma}'  be  retaken  on  the  old 
precept,  without  rendering  the  officer  liable  to  an  action 
for  false  imprisonment.  In  case  of  an  escape  permitted 
by  the  officer,  his  right  of  retaking  on  the  old  writ  will 
depend  on  the  nature  of  the  case.  In  ci^il  cases,  an  officer 
who  has  arrested  a  man  on  mesne  process  may  retake  him 
before  the  return  of  the  writ,  though  he  voluntarily  per- 
mitted him  to  escape  immediately  after  the  arrest.  For 
example :  The  defendant  arrests  the  plaintitf  in  civil  pro- 
cess, and  on  the  following  da}-  releases  him  upon  the  tat- 
ter's request.  Two  da^'s  afterwards,  the  defendant  rearrests 
the  plaintifi"  on  the  old  writ  and  commits  him  to  jail,  where 
he  remains  until  he  gives  bail ;  the  old  process  not  being 
yet  returnable  (that  is,  being  still  in  force).  This  is  not 
a  breach  of  duty  on  the  part  of  the  officer.^ 

If  the  aiTcst,  however,  in  the  example  last  given  had 
been  made  on  execution,  and  not  on  mesne  process,  the 
effect  of  permitting  an  escape  would  have  been  diflferent. 
The  officer  could  not  in  such  a  case  re-arrest  the  prisoner. 

I  Atkinson  v.  Matteson,  2  T.  R.  172. 


§  3  ]  FALSE   IMPraSONMENT.  121 

The  reason  of  the  difference  is  this  :  If  the  prisoner,  taken 
on  execution,  escape  by  the  vohmtar}-  permission  of  the 
officer  in  charge  of  him,  the  debt  of  the  pkiintiff  in  the 
action  is  considered  to  be  paid,  so  that  there  is  no  further 
ground  for  putting  the  party  under  restraint.  But,  in  the 
case  of  an  escape  on  mesne  process,  the  officer  need  only 
have  the  prisoner  before  the  court  at  the  return  of  the 
wiit.^ 

In  regard  to  criminal  cases,  there  has  been  some  conflict 
of  authority  as  to  the  right  to  take  the  prisoner  without 
new  process.  It  has  sometimes  been  decided  that  the 
prisoner  ma}-  be  so  retaken.^  In  later  decisions,  this  doc- 
trine has  been  denied  to  be  law,  except  in  so  far  as  it  may 
applj^  to  the  case  of  a  prisoner  who,  after  escape,  has 
returned  and  given  himself  into  custod}-  of  the  officer :  in 
this  case  the  prisoner  can  be  detained  under  the  old  writ.'^ 
And  this  appears  to  be  the  true  rule  and  distinction.  For 
example :  The  defendant,  an  officer  of  the  peace,  charged 
with  a  warrant  to  aiTCst  the  plaintiff  upon  a  charge  of 
larcenj",  executes  the  writ  upon  her,  and  takes  her  before 
a  justice  of  the  peace,  who  receives  her  recognizance  to 
appear  for  trial  at  another  court  upon  a  certain  day.  She 
is  then  discharged  from  arrest.  No  court  is  held  at  the 
place  and  time  stated.  Afterwards  the  defendant  re- 
arrests her  upon  the  old  warrant,  and  takes  her  before 
another  magistrate.     This  is  a  false  imprisonment.^ 

An  arrest  made  under  a  void  wi'it  will  generally-  render 

1  lb.  It  should  be  observed,  however,  that  imprisonment  on 
execution  for  debt  has  been  quite  generally  abolished. 

2  Clark  V.  Cleveland,  6  Hill,  344.  In  this  case,  the  prisoner  had 
been  let  to  bail  in  the  wrong  county,  and  then  released  from  custody  ; 
and,  in  an  action  by  him  for  malicious  prosecution,  it  was  held  that 
the  plaintiff  was  still  liable  to  arrest  under  the  original  warrant,  and 
that,  therefore,  the  proceedings  not  being  terminated,  the  action 
could  not  be  maintained. 

3  Doyle  V.  Kussell,  30  Barb.  300.  *  lb. 


122         DUTIES   OF  INDIVIDUALS  INTER  SE.     [Chap.  VL 

the  officer,  as  has  ah-eady  been  stated,  Mable  to  an  action 
for  false  imprisonment.  But  in  order  to  subject  him  to 
such  habilit}',  the  writ  must  have  been  actually  void  ;  that 
is,  of  no  more  validity  than  waste  paper.  If  it  be  void- 
able merely,  or  if,  though  void,  the  fact  do  not  appear  on 
the  face  of  the  writ,  the  precept  affords  a  protection  to  the 
person  who  serves  it.'' 

Now  a  writ  will  be  void  (1)  if  it  be  materiall}-  defective 
in  language ;  an  example  of  which  may  be  seen  in  the 
case  above  stated,  where  the  writ  failed  to  show  who  was 
intended  b}'  the  precept. 

A  wi'it  will  be  void  (2)  if  the  whole  proceeding  in  which 
it  was  issued  was  beyond  the  jurisdiction  of  the  court 
granting  it.  For  example :  The  defendant  executes  a 
warrant  against  the  plaintiff  for  the  collection  of  road 
taxes  ;  the  warrant  being  issued  b}'  a  justice  of  the  peace 
who  has  no  authorit}'  over  such  taxes.  The  writ  is  void, 
and  the  defendant  is  liable  for  false  imprisoiunent." 

A  writ  will  be  void  (3)  where  the  court,  though  having 
jurisdiction  over  the  subject-matter  of  a  proceeding,  has 
no  authorit}'  to  institute  it  by  a  waiTant.  For  example : 
The  defendant,  an  officer,  executes  a  waiTant  for  the  arrest 
of  the  plaintiff  in  a  complaint  for  the  non-payment  of 
wages.  The  court  issuing  the  wiit  has  jurisdiction  over 
such  cases,  but  has  no  power  to  issue  a  warrant ;  a  sum- 
mons being  the  only  process  allowed.  The  writ  is  void, 
and  the  defendant  is  hable.^ 

In  all  of  these  cases,  the  writ  is  said  to  show  its  inva- 
lidity upon  its  face,  and  when  this  is  the  case  the  officer  is 
not  bound  to  serve  it.  The  effect  of  the  second  and  third 
of  these  rules  is  to  require  the  officer  to  know  the  general 
extent  of  the  jurisdiction  of  the  court  which  he  is  serving. 

1  Deyo  V.  Van  Valkenburgh,  5  Hill,  242. 

2  Stephens  v.  Wilkins,  6  Barr,  260. 

8  Shergold  v.  Holloway,  2  Strange,  1002. 


§  3.]  FALSE   IMPraSONMKNT.  123 

Further  than  this,  the  law  does  not  go ;  and  in  other  oases 
the  officer  will  be  protected,  though  his  writ  were  voidable, 
and  liable  to  be  set  aside  for  error,  or  even  though  it  were 
actually-  void.^  Cases  of  this  kind  are  always  within  the 
limits  of  the  court's  general  jurisdiction ;  and  the  officer  is 
not  liable,  since,  though  bound  to  know  the  extent  of  the 
court's  jurisdiction,  he  is  not  presumed  to  know  the  nature 
and  propriety  of  all  the  proceedings  in  a  cause.  If  his 
writ  do  not  indicate  its  invalidity  on  its  face,  the  officer  is 
safe,  though  the  writ  ought  not  to  have  issued. 

To  put  the  case  in  the  form  of  a  more  general  proposi- 
tion, a  ministerial  officer  is  protected  in  the  execution  of 
process,  whether  the  same  issue  from  a  court  of  limited  or 
of  general  jurisdiction,  though  such  court  have  not  in  fact 
authorit}-  in  the  particular  instance,  provided  that  on  the 
face  of  the  process  it  appears  that  the  court  has  jurisdic- 
tion of  the  subject-matter,  and  nothing  appears  therein  to 
apprise  the  officer  that  the  court  has  not  authority  to 
arrest  the  body  of  the  party  named  in  the  process.  For 
example  :  The  defendant,  a  constable,  arrests  the  plaintiff 
under  a  warrant  from  a  justice  of  the  peace  issued  upon  a 
judgment  against  the  plaintiff  in  an  action  within  the 
jurisdiction  of  the  court.  The  court  has  authority  in  such 
cases  to  issue  a  warrant,  but  in  this  particular  instance 
the  suit  has  not  been  instituted  by  the  issuance  of  the 
necessary  process  for  the  appearance  of  the  then  defend- 
ant, now  plaintiff.  The  defendant  has  violated  no  dutj-  to 
the  plaintiff,  and  is  not  liable,  though  the  court  had  no 
authorit}^  to  issue  the  warrant  under  such  circumstances, 
the  writ  not  indicating  the  fact.'-^  Again  :  The  defendant, 
an  officer,  arrests  the  plaintiff,  a  member  of  the  legislature, 
privileged  at  the  time  from  arrest,  the  writ  not  indicating 

1  See  Deyo  v.  Van  Valkenburgh,  5  Hill,  242. 

2  Savacool  v.  Boughton,  5  Wend.  170 ;  s.  c.  Bigelow's  L.  C. 
Torts,  241. 


124  DUTIES   or  INDIVIDUALS  INTER  SE      [Chap.  VI. 

the  fact.     This,  as  to  the  defendant,  is  not  a  false  impris- 
onment.^ 

The  clerk  of  the  court  (probably)  will  also,  like  the 
officer  who  serves  the  precept,  be  liable  in  case  he  make 
out  the  writ  in  a  defective  form.  He  has  done  that  which 
he  has  no  right  to  do,  and  is  impliedly  forbidden  to  do ; 
and  he  must  therefore  stand  upon  the  same  footing  with 
the  officer. 

The  clerk  may  also  be  liable  when  the  officer  who  sei-ves 
the  writ  is  not  liable.  And  this  will  be  the  case  whenever 
the  writ,  though  regular  on  its  face  (and  hence  a  justifica- 
tion to  the  officer) ,  was  issued  without  orders  of  the  court, 
under  circumstances  in  which  such  issuance  is  not  by  law 
allowed.  For  example :  The  defendant,  clerk  of  an  in- 
ferior court,  issues  a  writ  of  capias  on  which  the  plaintiff 
is  arrested,  without  the  presence  or  intervention  of  the 
court,  upon  a  default  of  the  plaintiff,  as  to  the  granting  of 
which  the  law  requires  that  the  judge  should  exercise  cer- 
tain judicial  functions.  The  defendant  is  guilty  of  a 
breach  of  duty,  and  is  liable  to  the  plaintiff;  and  this 
too  thougli  he  only  conformed  to  the  usual  practice  of  the 
court  in  such  cases,  since  a  court  cannot  delegate  to 
another  its  judicial  functions.^ 

The  clerk  will  also  (probably)  be  liable,  like  both  the 
officer  and  the  judge,  when  the  writ,  issued  by  order  of 
the  court,  shows  upon  its  face  that  the  whole  cause  was 
without  the  jurisdiction  of  the  judge.  It  will  be  different, 
however,  if  the  proceeding,  being  within  the  jurisdiction 
of  the  court,  the  particular  act  merely,  commanded  by  the 
court,  was  in  excess  of  its  jurisdiction,  without  the  clerk's 
knowledge.  The  clerk  is  a  merely  ministerial  officer,  Uke 
the  sheriff  or  constable,  and  is  no  more  bound  than  such 
officer  to  know  of  the  legality  of  orders  of  the  court  within 

1  Tarlton  v.  Fisher,  2  Doug.  671 ;  Chase  v.  Fish,  16  Maine,  132. 

2  Andrews  v.  Morris,  1  Q.  B.  3. 


§  3.]  FALSE   IMPRISONMENT.  125 

its  jurisdiction.  For  example  :  The  defendant,  clerk  of  a 
count}'  court,  b}'  order  of  the  judge  signs  and  seals  a  writ 
for  the  arrest  and  imprisonment  of  the  plaintiff  for  a  period 
of  thirt}"  days,  after  a  certain  date,  upon  failure  to  con- 
form to  an  order  of  court ;  when  the  order  of  commitment 
should  have  required  an  earher  arrest.  The  defendant  is 
not  liable,  though  the  judge  (as  will  be  seen)  would  be.^ 

The  judge  is  liable  whenever  the  officer,  acting  in  strict 
accordance  with  his  precept,  is  liable  ;  provided  the  precept 
be  not  void  for  defective  language.  As  the  judge  does  not 
make  out  the  writ,  he  cannot  be  liable  for  such  defect ;  and 
the  clerk  is  not  his  agent  or  servant.-  In  other  cases,  that 
is,  when  the  court  has  not  jurisdiction  of  the  cause,  the 
proceeding  is  coram  von  judice :  the  court  loses  its  judicial 
function,  and  the  judge  becomes  a  mere  private  citizen.^ 

But  more  than  this :  The  judge  may  be  liable  when  the 
officer  is  not.  This  will  be  true  whenever  the  judge  has 
plainh'  exceeded  his  jurisdiction,  though  in  a  matter  not 
affecting  the  officer.  For  example  :  The  defendant,  a  jus- 
tice of  the  peace,  fines  the  plaintiff  under  the  game  laws,  as 
he  may  do,  and  then  sends  him  to  jail  without  an}'  attempt 
to  lev}'  the  penalty  upon  his  goods,  which  he  has  no  right 
to  do.  He  is  liable  for  false  imprisonment;  though  the 
officer  who  executes  the  writ  is  not.* 

1  Dews  V.  Riley,  11  Com.  B.  434. 

«  Carratt  v.  Morley,  1  Q.  B.  18. 

8  The  Marshalsea,  10  Coke,  68  b ;  s.  c.  Bigclow's  L.  C.  Torts,  278, 
note. 

*  Hill  V.  Batcman,  2  Strange,  110.  The  arrest  was  justifiable,  so 
far  as  the  sheriff  was  concerned,  because,  though  in  the  particular 
instance  unauthorized,  it  was  still  within  the  powers  of  the  justice  to 
grant  such  a  writ  in  a  proper  case ;  that  is,  after  an  ineffectual  at- 
tempt to  levy  the  penalty  upon  the  party's  goods.  The  officer  was 
not  bound  to  know  whether  such  an  attempt  had  been  made.  Proba- 
bly he  would  have  been  liable  had  he  known  that  no  such  attempt 
had  been  made ;  and  this  knowledge  might  perhaps  have  been 
easily  proved.    But,  until  proved,  the  officer  could  not  be  liable. 


126         DUTIES   OF  INDIVIDUALS  INTER   SE.     [Chap.  VI. 

When  the  question  of  the  court's  jurisdiction  turns  on 
matter  of  fact,  it  is  laid  down  as  well  settled  that  a  judge 
of  a  court  of  record  with  limited  jurisdiction,  or  a  justice 
of  the  peace  acting  judicially,  with  special  and  limited 
authority',  is  not  liable  to  an  action  of  trespass  (of  which 
the  actijOn  for  false  imprisonment  is  an  example)  for  acting 
without  jurisdiction,  unless  he  had  the  knowledge  or  means 
of  knowledge,  of  which  he  ought  to  have  availed  himself, 
of  that  which  constitutes  the  defect  of  jurisdiction.^  And 
it  lies  upon  the  plaintiff  in  ever}'  case  to  prove  the  fact.^ 
For  example :  The  defendant,  a  justice  of  the  peace,  hav- 
ing jurisdiction  to  grant  a  capias  in  certain  classes  of  civil 
offences,  committed  within  his  district,  orders  the  arrest  of 
the  plaintiff,  on  suit  brought  against  him  hy  a  third  person, 
for  an  offence  committed  without  his  district.  The  defend- 
ant, however,  has  no  knowledge  that  the  act  was  committed 
be3'ond  his  district,  nor  is  he  put  upon  notice  of  the  fact 
by  any  thing  arising  before  the  arrest.  He  is  not  liable  for 
a  false  imprisonment,^  unless  he  acted  maliciously  and 
without  probable  cause.* 

When,  however,  the  question  of  jurisdiction  does  not 
depend  upon  the  proof  of  certain  facts,  but  upon  a  ques- 
tion of  law,  the  judge  acts  at  his  peril ;  and,  if  he  order 
the  arrest  of  an  individual  when  he  has  no  jurisdiction, 

1  Calder  v.  Halkett,  3  Moore,  P.  C.  28,  Parke,  B.;  Pease  v. 
Chaytor,  32  Law  J.  Mag.  Cas.  121,  Blackburn,  J. 

2  Calder  v.  Halkett  and  Pease  v.  Chaytor,  supra,  in  which  Carrett  v. 
Morlcy,  1  Q.  B.  18,  apparently  contra,  is  doubted. 

3  See  Pease  v.  Chaytor,  supra,  opinion  of  Blackbiirn,  J.,  at  pp. 
125,  12G,  from  which  this  example  is  framed.  Another  example 
may  be  seen  in  Lowther  v.  Radnor,  8  East,  113,  119.  A  distinction 
must,  however,  be  noticed  (which  was  pointed  out  in  Pease  v.  Chay- 
tor) between  a  proceeding  to  prevent  the  enforcement  of  a  judgment 
in  such  a  case  —  that  would  be  proper  —  and  an  action  against  the 
judge  of  the  court,  as  in  the  example. 

*  lb.  But  the  case  would  then  be  an  action  for  malicious  prose- 
cution. 


§  3.]  FALSE  IMPRISONMENT.  127 

not  determinable  on  facts,  he  will  be  liable  for  false 
imprisonment.  For  example  :  The  defendant,  judge  of  a 
court  of  record  of  limited  jurisdiction,  directs  the  arrest 
of  the  plaintiff  for  contempt  of  the  process  of  the  court, 
and  commits  him  to  jail.  The  commitment  is  unauthorized, 
and  is  made  under  a  mistake  of  law  as  to  the  powers  of 
the  defendant,  and  not  under  mistake  as  to  the  facts ;  the 
statute  requiring  that  the  process  (under  the  circumstances) 
should  have  been  issued  by  the  court  of  another  county. 
The  defendant  is  liable.^ 

From  the  statement  of  the  foregoing  principles  and 
examples,  it  will  be  seen  (1)  that  the  officer  alone  may  be 
liable  for  fiilse  imprisonment ;  as  where  he  executes  his 
writ  upon  the  wrong  person,  without  the  latter's  fault :  (2) 
that  the  clerk  alone  may  be  liable ;  as  where,  without 
direction  from  the  judge,  he  issues  a  precept  regular  in 
form,  and  within  the  jurisdiction  of  the  court,  but  which 
he  had  no  right  thus  to  issue :  (3)  that  the  judge  alone 
may  be  liable ;  as  where,  ha\'ing  jurisdiction  over  the 
cause,  he  orders  the  issuance  of  the  warrant  under  circum- 
stances in  which  the  act  was  improper :  (4)  that  the  officer 
and  the  clerk  may  alone  be  liable ;  as  where  the  writ  con- 
tains substantially  defective  language  :  (5)  that  all  three 
ma}'  be  liable  ;  as  where  the  whole  cause,  in  the  course  of 
which  the  writ  is  issued  (at  the  command  of  the  judge) , 
is  without  the  jurisdiction  of  the  court.  There  appears  to 
be  no  case  in  which  the  clerk  and  the  judge,  or  the  officer 
and  the  judge,  may  alone  be  liable  ;  and  this  arises  from 
the  fact  that  the  judge  occupies  a  position  (that  is,  a  judi- 
cial position)  entirely  distinct  from  that  of  the  clerk  and 
the  officer ;  while  they  occupy  the  like  position  towards 
each  other  of  ministerial  servants. 

This  is  not  all.     The  liability  for  a  false  imprisonment 
may  extend  to  the  attorney  at  whose  instance  the  proceed- 
1  Houlden  v.  Smith,  14  Q.  B.  841. 


128  DUTIES  OF  INDIVIDUALS  INTER  SE.     [Chap.  VL 

ing  was  begun,  and,  further  still,  to  his  client  who  author- 
ized him  to  begin  it.  Indeed,  this  will  alwa3'S  be  the  case 
wherever  it  can  be  properly  said  that  the  imprisonment 
was  ordered  by  the  client,  after  the  warrant,  being  voidable 
and  not  void,  has  been  set  aside  as  illegal. 

When  the  judge  assumes  the  power  of  ordering  the  war- 
rant, upon  a  full  statement  of  the  grounds,  the  act  (with 
the  exception  to  be  stated  presently)  is  his  own,  and  not 
the  attorney's  or  his  chent's  ;  ^  and  this,  too,  though  coun- 
sel were  urgent  for  the  issuance  of  the  writ.^  If  this  be 
the  extent  of  the  connection  of  the  attorney  and  client 
with  the  arrest,  neither  can  be  liable,  whether  the  writ  was 
granted  upon  a  mistaken  view  of  the  law  by  the  judge  as  to 
his  jurisdiction  (in  which  case  he  would  be  liable) ,  or  was 
issued  in  a  materially  defective  form  (in  which  case  the 
clerk  and  the  officer  would  be  liable)  :  the  act  is  that  of 
another.  Illustrations  may  be  seen  in  the  examples  above 
given.  Hence  the  attorney  and  client  may  not  be  liable, 
though  the  process  was  void  on  its  face.^ 

The  attorney,  and  his  client  with  him,  ma}',  however, 
become  hable  in  a  case  in  which  the  arrest  has  been  thus 
ordered  b}-  the  judge.  Such  a  result  will  come  about  when- 
ever the  attorney  participates  in  au}^  manner  in  effecting 
the  arrest  after  the  issuance  of  the  improper  warrant.  For 
example :  The  defendants,  attorney  and  client  in  a  former 

1  Carratt  v.  Morley,  1  Q.  B.  18 ;  Williams  v.  Smith,  14  Com.  B. 
N.  s.  596 ;  Smith  v.  Sydney,  Law  R.  5  Q.  B.  203. 

2  Cooper  V.  Harding,  7  Q.  B.  928.  See  Peckham  v.  Tomlinson,  6 
Barb.  253. 

3  Carratt  v.  Morlcy,  1  Q.  B.  18.  Tiie  autlior  withdraws  his  criti- 
cism on  this  case,  made  in  his  Leading  Cases  on  Torts,  p.  280.  The 
client  had  done  nothing  but  to  ask  for  a  writ;  and  tlie  court,  acting 
judicially,  granted  it.  The  act  was,  therefore,  the  act  of  the  judge, 
and  not  of  the  party.  The  latter,  to  be  liable,  must  either  have 
directed  the  execution  of  the  writ  after  its  issuance,  or  have  obtained 
it  from  the  court  in  an  irregular  manner. 


§  3.1  FALSE   IMPRISONMENT.  120 

litigation  against  the  present  plaintiff,  having  obtained  an 
erroneous  warrant  against  the  latter  from  the  judge,  the 
attorney  persouall}'  puts  the  precept  into  the  officer's  hands, 
and  directs  him  to  serve  it.  The  defendants  are  both  liable  ; 
the  attorney  because  of  his  personal  interference  ;  the  client 
because  bound  by  the  act  of  his  attorney  in  the  ordinary 
course  of  the  litigation.^  Again :  The  defendant,  an  at- 
torney, indorses  with  his  name  and  residence  an  invalid 
warrant,  issued  against  the  plaintiff.  This  makes  him  a 
participant  in  the  false  imprisonment  which  follows  ;  •^  and 
his  client  also. 

When  the  writ  of  arrest  is  issued  through  misconduct  of 
the  attorney,  or  materially  false  representations  even  though 
not  fraudulent,  or  even  through  his  mistake,  the  act  is  not 
the  act  of  the  judge,  unless  he  had  no  jurisdiction  to  grant 
the  writ,  but  of  the  attorney,  and  of  his  client  whom  he 
represents.*  The  consequence  is,  that  the  last  named  are 
both  Kable  for  false  imprisonment  upon  the  execution  of 
the  precept ;  even  though  they  take  no  further  steps  in  the 
matter  than  those  involved  in  obtaining  the  writ.'*  For 
example  :  The  defendants,  attorney  and  client  in  a  former 
suit  against  the  present  plaintiff,  obtain  a  warrant  therein 
for  the  latter's  arrest  upon  material  misrepresentations 
made  in  an  affidavit  upon  which  the  warrant  is  awarded, 
on  account  of  which  misrepresentations  the  warrant  is, 

1  Barker  v.  Braham,  2  W.  Black.  866 ;  s.  c.  Bigelow's  L.  C.  Torts, 
235. 

2  Green  v.  Elgie,  5  Q.  B.  99. 

8  Williams  v.  Smith,  14  Com.  B.  n.  s.  596;  Codrington  v.  Lloyd,  8 
Ad.  &  E.  449;  Collett  v.  Foster,  2  Hurl.  &  N.  356.  See  Davics  v. 
Jenkins,  11  Mees.  &  W.  745.     Contra,  Coupal  v.  Ward,  106  Mass.  289. 

•*  This  is  what  is  meant  when  it  is  said  that  the  attorney  and  his 
client  are  liable  in  case  of  irregularity  in  obtaining  the  writ.  Irregu- 
larity (in  this  sense)  is  the  act  of  the  party  and  not  of  the  court.  See 
Codrington  v.  Lloyd,  8  Ad.  &  E.  449.  But  see  Johnson  v.  Maxon,  23 
Mich.  129. 

9 


130  DUTIES  OF  INDIVIDUALS  INTER  SE.    [Chap.  YI. 

after  the  plaintiif 's  arrest,  set  aside.  They  are  both  liable.^ 
Again :  The  defendant,  by  his  attorne}^  in  a  former  suit 
against  the  now  plaintiff,  procures  the  arrest  therein  of  the 
last  named  under  a  writ  issued  by  mistake  against  a  person 
not  bearing  the  name  of  the  present  plaintiff.  This  is  a 
false  imprisonment,  and  the  defendant  is  liable,  although 
the  person  intended  was  arrested.^  Again :  The  defend- 
ants, attorhe}"  and  client,  in  a  former  civil  action  against 
the  now  plaintiff,  in  which  thej'  obtained  judgment  against 
him,  obtained  a  warrant  for  the  arrest  of  the  plaintifl"  by 
virtue  of  the  judgment,  after  a  discharge  therefrom  of  the 
plaintiff  by  proceedings  in  insolvency,  of  which  the  defend- 
ants had  notice.  They  are  liable  for  false  imprisonment ; 
unless  it  can  be  shown  that  the  discharge  was  obtained  by 
fraud.' 

It  will  thus  be  seen  that  there  maj'^  be  cases  in  which  all 
the  parties  named  will  be  jointly  liable,  —  client,  attorney, 
officer,  clerk,  and  judge.  Such  will  be  the  result  where 
the  attornc}'  personally  directs  the  officer  to  serve  a  writ 
upon  the  plaintiff,  issued  by  the  judge's  order,  in  a  civil 
cause  wholly  beyond  the  jurisdiction  of  his  court. 

There  is  a  structural  distinction  between  civil  and  crim- 
inal cases.  The  parties  are  different.  A  civil  suit  is  a 
litigation  between  individuals :  a  criminal  suit  is  a  litiga- 
tion between  the  State  and  an  individual.     The  prosecutor 

1  Williams  v.  Smith,  14  Com.  B.  n.  s.  506.  The  action  was  not 
sustained  in  this  second  suit  because  the  misrepresentations  were  not 
material. 

2  See  Jarmain  v.  Hooper,  G  Man.  &  G.  827. 

^  Deyo  V.  Van  Valkenburgh,  5  Hill,  242.  This  is  the  exception 
alluded  to  above,  by  which  the  attorne}'  and  client  are  liable,  though 
the  judge  has  been  merely  asked  to  grant  the  warrant.  But  it  was 
misconduct  to  ask  for  the  warrant  when  it  was  known  that  the  judg- 
ment had  been  discharged,  unless  proof  could  be  brought  that  the 
discharge  was  fraudulent.  The  judge,  having  no  jurisdiction  to 
grant  the  warrant  in  such  a  case,  would  also  be  liable. 


§  3.]  FALSE  IMPRISONMENT.  131 

in  a  criminal  action  does  not  represent  the  plaintiff  in  a 
civil  suit.  A  ci\il  proceeding  is  instituted  in  the  interest 
and  for  the  benefit  of  the  plaintiff,  and  is  under  his  control 
throughout :  the  plaintiff  is  dominus  litis.  False  steps  and 
misconduct  on  his  beh^df  in  the  course  of  the  litigation  will 
therefore  bind  him,  as  has  alread}'  been  seen.  The  prose- 
cutor of  crime,  however,  is  not  a  part3'  to  the  litigation 
instituted  by  him.  The  proceeding  is  not  carried  on  pri- 
maril}'  in  his  interest ;  and  he  has  no  control  over  its  course. 
The  consequence  is,  he  cannot  be  bound  b}-  the  action  of 
the  attornej-'general  or  other  prosecuting  officer.  He  may, 
however,  bind  himself,  and  become  liable  for  a  false  im- 
prisonment by  acts  of  his  own,  or  of  counsel  whom  he  may 
employ  to  assist  the  State.  If  the  prosecutor  or  his  attor- 
ney- should  personally-  direct  the  service  of  an  invalid  writ, 
whether  void  or  onl}-  voidable,  he  would  be  hable  to  the 
part}-  arrested.^ 

Before  an  action  for  false  imprisonment  under  process 
of  court  can  be  maintained,  it  is  necessary  that  the  writ 
should  be  set  aside,  unless  it  appear  to  be  absolutely-  void. 
For  if  the  process  be  merel}-  voidable,  it  is  valid  until 
quashed ;  and  hence  the  arrest  must,  till  then,  be  legal. ^ 
If,  however,  the  process  be  absolutely  void,  and  the  action 
be  brought  against  the  proper  part^-  or  parties,  it  is  not 
necessary,  either  in  cases  of  civil  or  in  criminal  arrests,  to 
have  it  set  aside  before  suing  for  false  imprisonment.  For 
example  :  The  defendant  procures  the  arrest  of  the  plain- 
tiff on  a  warrant  issued  upon  a  judgment  which  the  former 
knows  to  have  been  discharged  ;  and  the  plaintiff  sues  for 
false  imprisonment  without  first  having  the  writ  set  aside. 
The  action  is  maintainable  ;  the  writ  being  absolutely  void.' 

1  Brown  v.  Chatlsey,  39  Barb.  253 ;  Hopkins  v.  Crowe,  4  Ad.  &  E.  774. 

2  See  Deyo  v.  Van  Valkenburgh,  5  Hill,  242 ;  Chapman  v.  Dyett, 
11  Wend.  31. 

*  Deyo  V.  Van  Valkenburgh,  supra. 


132  DUTIES  OF  INDIVroUALS  INTER  SE.     [Chap.  Vl 

Again  :  The  defendant,  a  justice  of  the  peace,  procures  the 
arrest  of  the  plaintiff  upon  four  convictions  before  him  of 
baking  bread  on  one  and  the  same  Sunda}^ ;  the  law  per- 
mitting of  but  one  conviction  in  such  a  case.  The  defend- 
ant is  liable  for  false  imprisonment,  though  the  wrongful 
convictions  be  not  first  quashed.^ 

In  both  civil  and  criminal  cases,  however,  the  action  is 
to  be  distinguished  from  a  suit  for  malicious  prosecution. 
The  writ  in  an  action  for  a  false  imprisonment,  made  un- 
der process  of  court,  may  have  been,  as  to  the  part}'  or 
parties  sued  for  the  tort,  either  void  or  voidable  ;  ^  and,  in 
such  a  case,  the  action  is  maintainable  without  proof  of 
malice,  or  of  want  of  probable  cause,  or  of  the  termina- 
tion of  the  prosecution.  In  an  action  for  malicious  prose- 
cution, however,  it  matters  not  whether  the  writ  was  void, 
voidable,  or  valid  ;  but  the  plaintiff,  as  has  been  seen,  has 
the  burden  of  proving  all  the  facts  just  stated. 

§  4.  Of  Arrests  without  Warrant. 

It  is  not  necessar}',  however,  in  all  cases  that  an  arrest 
for  an  infraction  of  the  law  should  be  made  under  authority 
and  b}'  command  of  a  warrant.  There  are  occasions  on 
which  the  utmost  promptness  of  action  is  required  for  the 
attainment  of  the  ends  of  justice  in  the  apprehension  of 
violators  of  the  law ;  and  the  necessities  of  society  have 
in  such  cases  furnished  a  justification  for  the  arrest  of 
offenders  without  a  formal  warrant  of  a  court  of  justice. 

^  Cripps  V.  Dnrdcn,  2  Cowp.  640.  In  this  case  there  was  no 
arrest,  but  merely  a  levy  on  the  plaintiff's  goods  for  the  amount  of 
the  penalty  ;  but  the  principle  would  be  the  same. 

2  It  will  be  noticed  that  to  sustain  an  action  against  the  officer 
who  served  the  writ,  or  against  the  clerk,  the  writ  must  have  been 
void  on  its  face  ;  while  it  is  enough  in  this  respect,  to  sustain  an  action 
against  the  judge  or  attorney  and  client,  tliat  the  writ  was  only 
voidable. 


§  4.J  FALSE  IMPRISONMENT.  133 

But  the  law  does  not  encourage  the  making  of  arrests  in 
this  manner :  on  the  contrar}-,  in  the  interest  of  libcrt}',  it 
prefers  a  slower  and  more  deliberate  proceeding  by  war- 
rant, issued  upon  solemn  oath  concerning  the  facts,  in  all 
cases  in  which  the  administration  of  justice  can  thus  be 
elBcientl}'  carried  out. 

The  occasions  on  which  arrests  without  warrant  are  con- 
sidered justifiable  upon  the  above  stated  ground  are  well 
defined.  In  the  first  place,  it  must  be  understood  that  the 
right  to  make  such  arrests  is  confined  altogether  to  infrac- 
tions of  the  criminal  law  (a  term  which  includes  misde- 
meanors as  well  as  technical  crimes).  In  no  case  can  an 
officer  make  an  arrest  in  a  civil  cause  without  the  protec- 
tion of  a  warrant.  It  is  true,  as  has  been  already  stated, 
that,  in  cases  of  the  release  of  a  prisoner  arrested  on  mesne 
process  in  a  civil  action,  the  officer  ma}'  retake  the  party 
without  obtaining  a  special  warrant  for  this  particular  pur- 
pose ;  but  that  is  because  he  has  alread}'  a  warrant,  which 
is  still  in  force.  Hence,  the  officer  does  make  the  arrest 
under  a  writ ;  and  he  must  justiA'  his  act  under  that  writ. 

The  first  case  to  be  mentioned  in  which  an  arrest  can  be 
made  without  a  Avarrant,  is  when  the  arrest  is  made  upon 
the  spot,  at  the  time  of  the  breach  of  the  peace.  Such  a 
case  comes  directly  within  the  reason  above  mentioned, 
namelj',  the  necessities  of  society ;  nor  could  there  be  an}' 
use  of  requmng  an  affidavit  and  warrant  in  such  a  case, 
even  if  the  delay  might  not  be  fotal.  The  right  thus  to 
arrest  on  the  spot  applies  equally  to  all  breaches  of  the 
peace,  whether  the  act  be  a  crime  or  a  misdemeanor. 

An  arrest  without  warrant  ma}'  also  be  made  by  an 
officer  of  the  law,  qualified  for  the  making  of  arrests,  upon 
"  suspicion  of  felony,"  to  use  a  common  exj^ression  of  the 
books.  The  meaning  of  this  is,  that  if  in  an  action  for 
false  imprisonment,  without  warrant  (that  is,  because  with- 
out warrant) ,  the  officer  can  show  that,  though  no  felony 


134  DUTIES  or  INDIVIDUALS   INTER   SE.     fCiiAP.  VT. 

was  in  fact  committed,  he  had  reasonable  ground  to  sup- 
pose that  the  prisoner  had  committed  such  a  crime,  he  has 
violated  no  dut}'  to  the  plaintiff  in  thus  making  the  arrest. 
For  example  :  The  defendant,  a  constable,  having  reason- 
able ground  to  beheve  that  the  plaintiff  is  guilty  of  the 
felon}'  of  receiving  or  aiding  in  the  concealment  of  stolen 
goods, ^  arrests  him  without  a  warrant,  and  conveys  him  to 
jail,  where  he  detains  the  prisoner  until  he  can  make  appli- 
cation to  a  magistrate  for  a  warrant  against  him  as  a 
receiver  of  stolen  goods.  The  warrant  is  refused,  and  the 
prisoner  at  once  discharged.  The  defendant  is  not  liable.^ 
The  officer's  suspicion  must,  however,  as  above  explained, 
be  a  reasonable  ground  to  suppose  the  prisoner  guilty  of  a 
felony ;  that  is,  it  must  be  such  a  strong  suspicion  as 
would  justif}'  a  man  of  caution  in  entertaining  a  belief  in 
the  part3-'s  guilt.  If  the  circumstances  do  not  warrant 
such  a  belief,  even  though  in  fact  a  felony  has  been  com- 
mitted, the  officer  violates  his  dut\'  to  the  plaintiff  bj-  ar- 
resting him  without  process  of  court. ^  For  example  :  The 
defendant,  a  constable,  arrests  and  imprisons  the  plaintiff, 
without  process,  under  the  following  cii'cum stances :  the 
cart  of  the  plaintiff,  a  butcher,  is  passing  along  the  high- 
way, when  a  person,  in  the  habit  of  attending  fairs,  stops 
the  cart  and  says  to  the  officer  (defendant) ,  "  These  are  mj' 
traces,  which  were  stolen  at  the  peace-rejoicing  last  j-ear." 
The  defendant  asks  the  plaintiff  how  he  came  by  the  traces. 
The  plaintiff  replies  that  he  had  seen  a  stranger  pick  them 
up  in  the  road,  and  had  bought  them  of  him  for  a  shilling ; 
whereupon  he  is  taken  into  custody',  and,  on  examination 
before  a  magistrate,  discharged.     This  does  not  show  a 

^  Felony  by  the  laws  of  Massachusetts. 

2  Rohan  v.  Sawin,  5  Ciish.  281. 

*  The  process  would  justify  the  officer  in  such  a  case,  since  the 
granting  of  it  would  be  a  declaration  of  tlie  judge  that  there  exists 
reasonable  ground  to  believe  the  party  guilty. 


§  i.]  FALSE   IMPRISONMENT.  185 

reasonable  ground  for  the  aiTcst  without  a  warrant,  and 
the  defendant  is  liable.^ 

In  the  authority'  from  which  this  example  is  taken,  the 
whole  case  was  given  to  the  judges,  with  power  to  act  as  a 
jury  so  far  as  might  be  necessary-  for  the  decision  of  the 
question  before  them.  It  therefore  does  not  appear  from 
the  decision,  whether  the  question  of  reasonable  cause  is  to 
be  considered  as  a  question  of  law  or  as  a  question  of  fact ; 
and  the  point  was  expressly'  left  undecided  b^'  the  judges. 

The  question  has,  indeed,  never  been  finally  answered. 
In  some  of  the  cases,  it  has  been  tacitly  assumed  that  the 
jury  must  determine  whether  the  officer  had  reasonable 
gi'ound  for  taking  the  plaintiff  into  custod}* ;  ^  in  others, 
that  it  is  for  the  court  to  sa}'  whether  the  facts  proved  show- 
proper  ground.^  The  point  has,  however,  been  decided  in 
England  in  accordance  with  this  latter  view  ;  *  making  the 
rule  to  conform  to  that  of  actions  for  malicious  prosecu- 
tion ;  and  this  seems  to  be  the  true  rule. 

If  the  analogy  furnished  b^-  the  law  of  actions  for  mali- 
cious prosecution  is  to  be  fully  carried  out,  and  it  appears 
reasonable  that  it  should  be,  it  will  also  be  necessary  for  the 
officer  to  show  that  this  reasonable  ground  for  making 
the  arrest  consisted  of  facts  within  his  own  possession  at 
the  time  of  the  arrest,  and  that  he  cannot  justifj'  on  facts 
which  afterwards  came  to  his  notice.  Nor,  on  the  other 
hand,  if  his  justification  lie  in  the  facts  before  him  at  the 
time  of  taking  the  party  into  custody,  will  his  defence  be 
overturned  b}-  evidence  of  facts  indicating  innocence,  that 
came  to  his  notice  after  the  imprisonment.^ 

1  Hogg  V.  Ward,  3  Hurl.  &  N.  417  ;  s.  c.  Bigelow's  L.  C.  Torts,  252. 

2  Rohan  v.  Sawin,  5  Cush.  281 ;  Brockway  v.  Crawford,  3  Jones, 
433 ;  Beckvvith  v.  Philby,  6  Barn.  &  C.  635. 

8  Ferryman  v.  Lister,  Law  R.  3  Ex.  197. 

*  Ferryman  v.  Lister,  supra;  Hill  v.  Yates,  8  Taunt.  182;  Davis  v. 
Russell,  5  Bing.  354. 
6  See  ante,  pp.  78,  79. 


1C6  DUTIES   OF   INDIVIDUALS  INTER  SE.     [Chai-.  VL 

At  common  law,  no  valid  arrest  without  a  warrant  can 
be  made  for  a  misdemeanor,  except  on  the  spot.  To  arrest 
a  man,  without  process,  on  suspicion  that  he  has  committed 
a  misdemeanor,  although  upon  reasonable  ground  of  his 
guilt,  is  a  breach  of  duty.  For  example  :  The  defendant, 
a  constable,  arrests  the  plaintiff  without  a  writ  on  the  state- 
ment of  J.  M.,  that  the  plaintiff  has  committed  the  offence 
of  perjury,  by  wilfullj^  and  corruptl}'  making  a  false  affida- 
vit in  a  judicial  proceeding  before  the  honorable  W.  W., 
judge  of  a  court,  and  he  takes  the  plaintiff  into  custody 
upon  this  charge,  at  the  direction  of  J.  M.  He  is  liable 
to  the  plaintiff  for  a  false  imprisonment ;  ^  though  he  would 
not  have  been,  had  the  offence  charged  been  a  felony. 

And  the  arrest  must  not  only  have  been  made  upon  the 
spot :  it  must  also  have  been  made,  in  the  case  of  an  actual 
breach  of  the  peace,  before  the  breach  has  entirely  ceased. 
For  example :  The  defendant,  a  constable,  takes  the  plain- 
tiff into  custody  without  a  warrant  under  the  following  cir- 
cumstances :  The  plaintiff  had  been  making  a  disturbance 
about  certain  premises  in  the  night-time,  and  had  refused, 
on  request  of  the  defendant,  to  desist.  Perceiving  that  the 
defendant  intends  to  arrest  him,  the  plaintiff  flees  and  is 
pursued,  overtaken,  and  aiTCsted ;  the  distui-bance  having 
previously  ceased.     The  defendant  is  liable.^ 

In  the  case  of  affrays,  however,  an  arrest  may  be  made 
without  a  warrant  not  only  during  the  actual  breach  of  the" 
peace,  but  so  long  as  the  offender's  conduct  shows  that  the 
public  peace  is  lilvely  to  be  endangered  by  his  acts.  Indeed, 
while  those  are  assembled  together  who  have  been  com- 
mitting acts  of  violence,  and  the  danger  of  renewal  con- 

1  Bowditch  V.  Balchin,  5  Ex.  378. 

2  Compare  Baynes  v.  Brewster,  2  Q.  B.  375,  where  the  defendant, 
on  such  facts,  was  a  private  citizen ;  but  tlie  rule  would  have  been 
the  same  had  he  been  an  officer,  as  the  language  of  Mr.  Justice 
Williams  in  that  case  shows. 


§  4.]  FALSE   IMPRISONMENT.  137 

tinues,  the  affray  ma}-  be  said  to  continue  ;  and  during  the 
affra}',  thus  understood,  the  officer  maj-  arrest  the  offender 
not  onl}'  on  his  own  view,  but  even  on  the  information  or 
complaint  of  another.  This  is  true  even  of  an  anest  by  a 
private  citizen.^  For  example  :  The  defendant,  arrests  the 
plaintiff  without  process  under  the  following  circumstances  : 
The  plaintiff  had  entered  the  defendant's  shop  to  make  a 
purchase,  when  a  dispute  arose  between  the  plaintiff  and  a 
servant  of  the  defendant,  resulting  in  an  affray  between 
them.  The  defendant,  coming  into  the  shop  during  the 
affra}',  orders  the  plaintiff  to  leave  the  shop,  which  he  re- 
fuses to  do  ;  the  violence  having  then  ceased.  The  defend- 
ant now  gives  the  plaintiff  into  the  custody  of  an  officer. 
This  is  no  breach  of  dut}-  to  the  plaintiff.- 

The  example  given  leads  to  the  consideration  of  the 
nature  of  the  right  of  a  private  citizen  to  arrest  offenders 
without  process  of  court ;  for  it  is  (probably)  lawful  for 
such  a  person  to  make  an  arrest  upon  a  warrant  under  the 
same  circumstances  in  which  an  officer  could  do  so. 

The  rule  of  law  in  regard  to  arrests  for  misdemeanors  by 
private  citizens  is  the  same  as  prevails  concerning  officers  : 
the}-  are  entitled  to  make  the  arrest  without  process  while 
the  breach  of  the  peace  is  going  on  or  (in  accordance  with 
the  explanation  given)  still  continues.  But  a  private 
citizen  has  no  right  to  make  an  arrest,  without  a  writ,  for 
a  misdemeanor  after  its  termination,  though  the  breach  of 
peace  was  committed  about  his  own  premises.* 

In  regard  to  felonies,  the  rights  of  officers  and  private 
citizens  are  different.  While  an  officer  can  arrest  without 
a  warrant  upon  reasonable  ground,  though  no  felon}-  has 
been  committed,  a  private  citizen  can  safely  make  an  arrest 

^  Timothy   ?;.  Simpson,  1  Cromp.  M.  &  R.  757 ;   s.  c.  Bigelow'a 
L.  C.  Torts,  257  ;  Baynes  v.  Brewster,  2  Q.  B.  375,  386. 
2  Timothy  v.  Simpson,  supra, 
*  Baynes  v.  Brewster,  supra. 


lo8         DUTIES   OF   INDIVIDUALS   INTER  SE.     [Chap.  VL 

without  a  waiTant  onl}'  (1)  when  the  felony  charged  has 
ac'tuall}'  been  committed,  and  (2)  when  there  was  rea- 
sonable gi'ound  for  supposing  the  party  arrested  to  be 
guilty.^ 

1  Allen  V.  Wright,  8  Car.  &  P.  522 ;   s.  c.  BIgelow's  L.  C.  Torts, 
265 


§  1.1  ENTICEMENT   AND   SEDUCTION.  139 


CHAPTER  Vn. 

ENTICEMENT  AND  SEDUCTION. 

§  1.  Introductory. 

Statement  of  the  duty.  A  owes  to  B  the  duty  to  forbear 
to  procure  or  cause  C  to  deprive  B  of  liis  or  her  (C's) 
service  or  consortium. 

The  law  of  enticement  and  seduction  gives  a  right  of 
redress  (1)  for  -nTongfull^-  interrupting  the  relation  of 
master  and  servant,  or  of  husband  and  wife,  and  (2)  for 
wrongfull}'  preventing  tlie  renewal  of  such  relation,  or  in 
the  language  of  the  books  for  "  harboring"  the  servant  or 
wife. 

The  relation  of  master  and  servant  is  sustained  not  only 
between  persons  one  of  whom  has  contracted  to  give  his 
services  to  the  other,  but  also  between  persons  one  of  whom 
gives  his  services  to  the  other  gi-atuitously,  and  between 
persons  one  of  whom  is  under  the  custodj-  or  guardianship 
of  the  other.  The  relation  thus  expressed  therefore  in- 
cludes (1)  that  of  master  and  servant  ex  contractu.,  (2)  of 
master  and  sei'vant  ex  gratia .^  (3)  of  parent  and  child,  and 
(4)  of  guardian  and  ward. 

The  law  of  enticement  differs  so  slightl}'  from  the  law  of 
seduction,  that  these  subjects  can  be  conveniently  treated 
as  one  in  nearl}'  all  of  their  legal  features.  Unless,  then, 
the  contrary  be  indicated,  it  will  be  understood  that  what  is 
said  under  either  designation  will  apply,  where  the  facts 
permit,  to  the  other  subject.^ 

^  The  terms  "seduction"  and  "enticement"  are  of  ten  indifferently 
used  in  the  old,  and  sometimes  in  the  later,  books.    A  journeyman, 


140         DUTIES   OF  INDIVIDUALS  INTER  SE.    [Chaj-.  VH 

The  whole  subject  will  now  be  examined  in  the  order 
indicated  in  the  paragraph  explaining  the  use  of  the  tenn 
master  and  servant ;  the  subject  of  husband  and  wife  fol- 
lowing the  various  divisions  relating  to  service. 


§  2.  Of  Master  and  Servant  ex  Contractu. 

Any  person  who,  with  notice  of  the  existence  of  the  rela- 
tion of  master  and  servant,  interrupts  that  relation,  with- 
out the  consent  of  the  master,  b}'  procuring  the  servant  to 
depart  from  his  master's  service,  violates  a  duty  which  he 
owes  to  the  latter,  and  becomes  liable  in  damages  to  him. 
For  example  :  The  defendant  entices  away  from  the  sei-vice 
of  the  plaintiff  his  journeymen  shoemakers,  with  notice  of 
their  relation  to  the  plaintiff,  persuading  them  to  enter 
into  his,  the  defendant's,  service.  This  is  a  breach  of 
duty.i 

It  matters  not  in  cases  of  a  binding  engagement  to  ser- 
vice that  the  servant  had  not  j'et  entered  upon  the  per- 
formance of  the  service  at  the  time  of  the  enticement  or 
seduction.  If  bj^  the  terms  of  the  contract  or  the  appren- 
ticeship (for  there  is  no  difference  between  an  ordinary 
contract  of  hiring  and  an  apprenticeship,  so  far  as  the 
present  subject  is  concerned)  the  master  has  a  right  to 
require  performance  of  the  services  at  the  time  of  the  en- 
ticement, he  has  a  right  of  redress  for  a  wrongful  inter- 
ference with  that  right.  For  example :  The  defendant 
induces  the  plaintiff's  gardener  to  refuse  altogether  to 
carry  out  his  engagement  to  make  the  plaintiff's  gardens, 
though  the  gardener,  owing  to  dissatisfaction  with  his 
engagement,  has  already  absented  himself  for  a  consid- 

for  example,  is  said  to  have  been  seduced,  when  he  has  been  enticed 
away  from  his  master's  service.  See  the  marginal  note  to  Hart  v. 
Aldridge,  1  Cowp.  54. 

1  Hart  V.  Aldridge,  sup-a ;  Walker  v.  Crouin,  107  Mass.  555. 


§  2.]  ENTICEMENT   AND   SEDUCTION.  141 

erable  time  from  his  duties  under  the  contract  of  hiring. 
The  defendant  is  liable.^ 

In  the  foregoing  examples,  the  defendant  had  notice  of 
the  existence  of  the  relation  of  master  and  servant  when 
he  procured  the  servant  to  leave  his  master.  Now,  notice 
of  the  existence  of  this  relation  is  necessary  in  all  cases 
of  actual  service :  in  the  absence  of  notice,  the  party 
enticing  or  seducing  the  servant  violates  no  duty  to  the 
master.  But  it  matters  not  that  such  party  had  no  notice 
at  first  of  the  existence  of  the  relation,  if  he  afterwards 
acquire  notice  and  then  persist  in  keeping  the  servant 
away  from  his  master.  For  example :  The  defendant 
emploj's  the  plaintiff's  servant,  upon  application  by  the 
latter ;  the  servant  having  left  the  plaintiff  duiing  the 
existence  of  his  contract  of  service,  of  which,  however, 
the  defendant  is  ignorant.  Afterwards  the  plaintiff  in- 
forms the  defendant  that  the  person  employed  by  him  is 
his  (the  plaintiff's)  servant.  The  plaintiff  requests  the 
servant  to  return  to  him,  and  the  servant  refuses  ;  and  the 
defendant  then  continues  to  keep  him  in  his  employ. 
The  defendant  is  liable  for  so  continuing  to  keep  the  ser- 
vant, though  not  for  taking  him  into  his  service.^ 

In  order,  however,  to  maintain  an  action  for  preventing 
a  renewal  of  the  service  (for  harboring  a  servant),  and 
not  for  interrupting  it,  it  is  necessary  that  there  should  be 
a  binding  contract  of  service.  If  there  be  no  such  engage- 
ment, the  defendant  cannot  be  liable  to  the  plaintiff  for 
persuading  the  servant  to  stay  where  he  is,  rather  than 
return  to  the  plaintiff,  since  the  plaintiff  neither  has  any 
right  to  require  the  service  in  such  a  case,  nor  is  he  at  the 
time  in  the  enjoyment  of  it  as  a  gratuity'.  For  example  : 
The  defendant  receives,  without  notice,  a  person  who  has 

1  Compare  Lumley  v.  Guy,  2  El.  &  B.  216 ;  s.  c.  Bigelow's  L.  C. 
Torts,  300. 

2  Blake  v.  Lanyon,  6  T.  R.  221. 


142  DUTIES  OF  INDIVIDUALS  INTER  SE.    [Chap.  VH 

been  acting  in  the  sen'ice  of  the  plaintiff  under  a  contract 
void  by  the  Statute  of  Frauds,  and  afterwards,  on  notice 
of  the  plaintiff's  claim  to  the  service,  during  the  tenn  of 
sen-ice  agreed  upon,  refuses  to  send  the  person  away. 
This  is  no  breach  of  duty  to  the  plaintiff.^ 

Some  question  has  been  made,  and  perhaps  some  doubt 
may  still  exist,  as  to  whether  this  doctrine  concerning  the 
liability  of  one  who  wrongfully-  entices,  seduces,  or  har- 
bors another's  servant  is  an  exception  to  established  rules 
of  law,  and  must  therefore  be  confined  stricth'  to  cases  of 
enticing  servants  in  the  ordinar}-  sense  of  persons  per- 
fonning  manual  labor  for  an  employer,  or  whether  such 
cases  are  not,  on  the  contrary-,  merel}'  special  instances  of 
a  wider  rule  of  law.  The  latter  has  in  England  been 
detennined  to  be  the  true  view,  and  is  somewhat  counte- 
nanced also  in  this  countiy.^  The  rule  (probably)  there- 
fore is  that  under  the  designation  "servant"  are  to  be 
understood  all  persons  who  give  another  the  benefit  of 
their  services,  though  these  be  not  manual.  For  example : 
The  defendant,  with  notice  that  W.  is  under  a  binding 
engagement  to  sing  at  the  plaintiff's  theatre,  procures  her 
to  break  her  engagement,  and  not  to  sing  for  the  plaintiff. 
This  is  a  breach  of  duty,  and  the  defendant  is  liable.^ 

The  difficulty  which  was  considered  to  be  in  the  way  of 
this  doctrine  was  said  to  be,  that  the  duty  owed  to  the 
plaintifl'  was  owed,  primaril}-,  b}-  the  so-called  servant; 
that  the  act  of  breaking  the  engagement  was  his  voluntary 
act ;  and  the  damage  ensuing  was,  therefore,  in  the  legal 
sense,  caused  by  the  servant's  act,  and  not  b}'  the  defend- 
ant's. But  this  reasoning  was  not  regarded  as  satisfac- 
tory.    The  defendant  knowingly  caused  the  breach,  by 

1  Sykes  v.  Dixon,  9  Ad.  &  E.  693.  See,  also.  Hartley  v.  Cummings, 
5  Com.  B.  247 ;  Pilkington  i;.  Scott,  15  Mees.  &  W.  G57. 

2  See  Walker  v.  Cronin,  107  Mass.  555,  505,  5G7. 

8  Lumley  v.  Guy,  2  El.  &  B.  21G;  8.  c.  Bigelow's  L.  C.  Torts,  306. 


§  3.]  ENTICEMENT  AND   SEDUCTION.  143 

purposel}'  making  it  desirable  ;  and  the  damage  was  there- 
fore the  proper  effect  of  his  act.  Indeed,  the  damage, 
properl}'  spealdng,  results  from  the  refusal  to  perfoim  the 
services,  rather  than  from  the  breach  of  the  contract,  as 
will  appear  b}'  supposing  that  the  services  (actuallj-  under- 
taken) were  gi-atuitous ;  and  the  act  of  the  defendant 
causes  the  refusal.^ 

§  3.    Of  Master  and  Servant  ex  Gratia. 

It  was  foi-merly  a  matter  of  some  doubt  if  an  action 
could  be  maintained  for  interraptiug,  with  notice,  the 
gi'atuitous  relation  of  master  and  servant.  It  was  some- 
times supposed  that  inasmuch  as  the  master  in  such  a  case 
could  not  require  the  services,  he  had  no  right  to  them 
which  could  be  infringed.  But  this  view  never  exten- 
sivel}-  obtained.  Tliough  a  person  may  not  be  able  to 
require  the  besto^Tnent  of  a  gi-atuit}',  he  has  a  right  to  it 
when  it  is  bestowed,  and  no  one  ma^-  interrupt  his  actual 
enjo^-ment  of  the  gi-atuit}'.  Hence  if  a  person  be  actually 
engaged  in  giving  his  services  to  another,  an^-  one  who, 
with  notice,  voluntarily  interrupts  the  service  violates  a 
legal  duty  to  the  recipient  of  the  gi-atuit}-,  and  becomes 
liable  in  damages.  For  example :  The  defendant,  with 
notice,  entices  away  a  3'oung  woman  while  she  is  in  the 
gratuitous  service  of  the  plaintift",  and  thereby  deprives 
the  plaintiff  of  the  benefit  of  her  help.  The  plaintiff  is 
entitled  to  recover  damages  therefor. - 

Indeed,  it  matters  not  in  such  cases  that  the  person 
enticed  was  actually  under  obligation  to  another :  if  the 
latter  do  not  insist  upon  his  rights,  no  third  person  can 
set  up   those   rights   to   escape   liabiUty   for  a   wrongful 

^  See  further  tlie  author's  note  to  Luniley  v.  Guy,  L.  C.  Torts, 
325,  326. 

2  Evans  v.  Walton,  Law  R.  2  Com.  P.  C15.  The  young  woman  in 
this  case  was  tlie  plaintiff's  daughter,  but  she  was  of  age. 


144  DUTIES  OF  INDIVIDUALS  INTER  SE.   [Chap.  VIL 

act.  For  example :  The  defendant,  with  notice,  seduces 
a  married  woman  while  she  is  rendering  gratuitous  sendee 
to  the  plaintiff,  her  father.  The  defendant  is  liable,  and 
cannot  set  up  in  defence  the  paramount  right  of  the 
woman's  husband  to  her  help.^ 

As  was  observed,  however,  in  the  preceding  section, 
and  as  follows  from  what  has  been  said  in  the  present,  no 
action  can  be  maintained  for  mere  harboring  a  gratuitous 
servant,  though  with  notice :  the  action  lies  solely  for 
enticing  the  person  away  or  otherwise  interrupting  the 
performance  of  the  service  while  the  serv^ant  is  disposed 
to,  and  engaged  in,  the  performance  of  it.  When  the 
servant  has  put  an  end  to  the  relation,  which,  in  the  case 
of  gratuitous  services,  he  ma}^  ordinaril}-  do  at  any  time, 
the  rights  of  the  master  at  once  terminate. 

§  4.    Of  Parent  and  Child. 

A  parent's  right  of  action  against  one  who  has  seduced 
or  enticed  away  his  minor  child  rests  either  upon  his  right 
to  require  the  child's  services,  and  the  benefit  receivable 
therefrom ;  or,  where  the  right  to  require  the  child's  ser- 
vice does  not  (by  reason  of  emancipation  or  otherwise) 
exist,  upon  the  benefits  that  might  have  been  derived 
from  the  performance  of  the  child's  voluntar}-  service. 
The  right  of  action  does  not  depend  upon  the  parent's 
relationship  to  his  child. 

It  follows  that  the  parent  (father  or  mother,  according 
to  circumstances)  has  a  right  of  action  for  the  child's 
seduction  so  long  at  least  as  the  child  remains  at  home, 
accepting  authorit}'  from  the  parent ;  and  this  is  true, 
even  though  the  child  has  attained  majority,  as  would 
follow  from  what  has  been  said  in  the  preceding  section, 
and  as  will  further  appear  in  the  present. 

1  Harper  v.  Suffkin,  7  Barn.  &  C.  387. 


§  4.1  ENTICEMENT   AND   SEDUCTION.  145 

In  England,  it  is  considered  that  the  parent's  (the  fa- 
ther's, and,  of  conrse,  the  mother's)  right  of  action  for  the 
seduction  of  his  child  terminates  when  the  child  leaves  her 
parent's  house,  and  has  no  intention  of  returning.^  In 
America,  however,  this  doctrine  is  not  accepted.  The 
criterion  of  the  fathers  right  of  actioiijkv, this  countrj'  is 
considered  to  depend,  not  upon  thejffl  of  \^  child,  but 
upon  the  will  of  the  parent ;  andJp^||SjJ|^^tl4standing 
the  absence  of  the  child  from/!l^Li^hen^ijKdl5e  at  the 
time  of  the  seduction,  the  fathei^'Ms  a  ui^ht  of  j^tion  if 
he  has  not  divested  himself  of  his  rigijB 
vices,  even  though  she  were  at  the  'tunG.  of  th< 
the  service  of  another  with  her  father's  pernjiiS^on.  For 
example  :  The  defendant  seduces  the  plainim's  daughter 
under  the  following  circumstanpes :  the  daughter,  at  the 
age  of  nineteen,  with  the  consent  of  her  father,  the  plain- 
tiff, goes  to  live  with  a  relative,  for  whom  she  works  when 
she  pleases,  receiving  pay  for  her  labor.  While  thus  at 
her  relative's  house,  she  is  seduced  and  got  with  child  b}' 
the  defendant,  and  at  once  returns  to  her  father's,  and  is 
there  cared  for.  She,  however,  had  no  intention,  but  for 
the  seduction,  to  return  to  her  father.  The  defendant  has 
violated  a  duty  to  the  plaintiff,  since  the  plaintiff  had  a 
right  to  require  his  daughter's  services  at  the  time  of  the 
seduction.^ 

This,  however,  is  the  extent  of  the  American  rule.  If  the 
power  of  the  parent  over  his  daughter  be  gone  at  the  time 
of  the  seduction,  whether  by  his  own  consent  in  emanci- 
pating her  or  MMing  her  out  to  service,  or  by  the  act  of 
the  law  in  takiH^  her  away  from  him,  the  seducer  has  vio- 

1  Dean  i\  Peel,  5  East,  45.  See  Griffiths  v.  Teetgen,  15  Com.  B. 
344;  Manly  v.  Field,  7  Com.  B.  n.  s.  96;  Hedges  v.  Tagg,  Law  R.  7 
Ex.  283. 

2  Martin  v.  Tayne,  9  Johns.  387 ;  s.  c.  Bigelow's  L.  C.  Torts,  286, 
and  cases  cited  on  p.  291  of  the  same  work. 

10 


146         DUTIES  OF  INDIVIDUALS  INTEK   SE.   [Chap.  VH, 

latcd  no  legal  duty  to  him ;  though  there  has  been  some 
conflict  as  to  the  application  of  this  doctrine  in  the  case  of 
the  return  of  the  daughter  to  the  parent  after  the  seduc- 
tion, —  a  point  to  be  considered  hereafter. 

It  is  considered,  however,  that,  if  the  parent's  control 
over  his  child  was  divested  bj'  fraud,  he  may  treat  it,  even 
after  the  seduction,  as  never  having  been  abandoned,  and 
maintain  an  action  against  the  seducer.  For  example : 
The  defendant  hires  the  jDlaintiff's  daughter  from  his  ser- 
vice with  intent  to  seduce  her,  and  by  this  means  obtains 
possession  of  her  person,  and  seduces  her.  The  plaintiff 
is  entitled  to  recover  for  his  loss  of  service  as  if  he  had 
seduced  the  daughter  in  the  actual  sen-ice  of  her  father.^ 

It  is  not  necessarj'  that  the  child  should  have  per- 
formed specific  acts  of  service.  The  right  to  the  sei-vice 
is  enough.  This  is  true  even  in  England,  where  the  courts 
have  been  more  strict  in  enforcing  the  necessit^^  of  the  ex- 
istence of  the  relation  of  master  and  servant  between  the 
parent  and  child  than  those  of  this  country.-^  For  exam- 
ple :  The  defendant  seduces  the  minor  daughter  of  the 
plaintiff,  a  gentleman  of  wealth,  while  she  is  awaj^  from 
home  attending  a  boarding-school,  where  she  was  to  stay 
indefinitely.     The  defendant  is  liable.^ 

The  father's  right  of  action  continues,  as  has  abeady 
been  observed,  after  the  daughter  has  come  of  age,  if  the 
relation  of  master  and  servant  still  exist.  If  the  parent 
continue  to  exercise  authority  over  the  daughter  after  her 
majority,  and  she  continue  to  submit,  she  is  still  his  ser- 
vant, though  not  under  an  actual  engagement  to  serve  him  ; 
and  seduction  under  such  circumstances  is  a  breach  of 

1  Speight  V.  Oliviera,  2  Stark.  493.  See  Evans  v.  Walton,  Law  R. 
2  Com.  P.  G15,  624. 

•^  Terry  r.  Hutchinson,  Law  11.  3  Q.  B.  599,  002,  Blackburn,  J. ; 
Maunder  v.  Venn,  Moody  &  M.  323. 

8  See  the  language  of  Spencer,  J.,  in  Martin  v.  Payne,  supra. 


§  4.]  ENTICEMENT   AND   SEDUCTION.  147 

legal  duty  to  the  parent.  For  example  :  The  defendant 
seduces  the  i)Iaintiff's  daughter,  aged  twentj'-two  j'ears. 
Prior  to  and  at  the  time  of  the  seduction,  the  daughter  has 
been  living  part  of  the  time  with  her  brother,  who  resides 
about  a  mile  from  her  father's  house,  and  part  of  the  time 
with  her  father.  She  has  not  received  wages  from  her 
brother,  and  when  at  home  has  worked  for  her  mother,  the 
plaintiff  buying  her  clothing.  The  daughter  is  the  plain- 
tiff's servant,  and  the  defendant  is  liable.'^ 

By  the  American  law,  it  is  not  necessary  that  the 
female's  seduction  should  be  followed  by  pregnane}-,  in 
order  to  constitute  the  defendant's  act  a  breach  of  duty  to 
the  father;  though  the  contrary  has  been  held  in  England.'^ 
The  American  rule  is,  that  where  the  proper  effect  of  tlie 
connection  is  an  incapacity-  to  labor,  by  reason  of  which 
the  plaintiff  loses  the  services  of  his  daugliter  and  servant, 
the  loss  of  such  services  entitles  the  plaintiff  to  recovei 
against  the  seducer.  The  same  principle  which  gives  a 
master  an  action  where  the  connection  causes  pregnancy 
applies  to  the  case  of  sexual  disease,  and,  indeed,  to  all 
cases  where  the  proper  consequence  of  the  act  of  the  de- 
fendant is  a  loss  of  health  resulting  in  an  incapacit}-  for 
such  service  as  could  have  been  rendered  before.  For 
example :  The  defendant  seduces  the  plaintiff's  minor 
daughter,  by  reason  of  which,  without  becoming  pregnant 
(or  ])eing  affected  with  sexual  disease) ,  she  suffers  gen- 
eral injury  in  health,  so  that  it  becomes  necessary  for  the 
plaintiff  to  send  her  away  for  her  health  ;  whereby  he  incurs 
expense  and  loses  his  daughter's  services.  The  defendant 
is  hable.^ 

If,  however,  the  loss  of  health  be  caused  by  mental  suf- 

'  Sutton  V.  Huffman,  3  Vroom,  58. 
2  Eager  v.  Grimwood,  1  Ex.  61. 

»  Abrahams  v.  Kidney,  104  Mass.  222.     See  Van  Horn  v.  Freeman, 
1  Halst.  322. 


148  DUTIES  OF  INDIVIDUALS  INTER  SE.    [Chap.  VIT 

fering,  not  the  consequence  of  the  seduction,  but  produced 
bj^  subsequent  intervening  causes,  the  loss  of  service  is  not 
the  proper  consequence  in  contemplation  of  law  of  the 
defendant's  act ;  and  hence  the  action  cannot  be  main- 
tained.^ For  example  :  The  defendant  seduces  the  plain- 
tiff's minor  daughter,  and  subsequently  abandons  her,  in 
consequence  of  which  she  suffers  such  distress  of  mind  as 
to  bring  illness  upon  her,  and  incapacitate  her  for  perform- 
ing services  for  the  plaintiff;  no  pregnancy  or  disease 
resulting  b}'  direct  consequence  of  the  seduction.  The 
defendant  is  not  liable  to  the  plaintiff. - 

If  a  loss  of  service  follow  as  the  proper  effect  of  the 
defendant's  act,  it  is  immaterial  that  he  accomplished  his 
purpose  without  resorting  to  seductive  arts.  The  wiUing 
ness  of  the  daughter  cannot  affect  the  parent's  rights  ; ' 
though  it  has  sometimes  been  supposed  that  the  ready  con- 
sent of  the  young  woman  might  be  ground  for  mitigation 
of  damages.* 

What  has  been  said  in  the  preceding  paragraphs  con- 
cerning the  parent's  right  of  action  for  loss  of  service  must 
be  understood  of  the  father's  claim  to  damages.  During 
his  guardianship  of  the  daughter,  the  right  of  action  be- 

1  Abrahams  v.  Kidney,  supra ;  Boyle  v.  Brandon,  13  Mees.  &  W.  738. 

2  Boyle  i".  Brandon,  siqn-a. 

8  Damon  v.  Moore,  5  Lans.  454. 

*  Hogan  V.  Cregan,  6  Rob.  (N.  Y.)  138,  criticised  in  Damon  v. 
Moore,  supra.  Perliaps  this  would  be  true  if  the  daughter  were  a 
notoriously  loose  character,  and  had  already  brought  her  family  to 
mortification  and  shame.  In  general,  the  damages  in  an  action  by  a 
parent  for  seduction  are  not  confined  to  the  loss  of  service.  While 
the  loss  of  service  is  of  the  gist  of  the  action,  still  when  the  loss  is 
established,  and  shown  to  have  been  caused  by  the  defendant's  acts, 
the  court  permits  the  jury  to  give  damages  for  the  shame  that  has 
been  inflicted  upon  the  plaintiff's  family.  L.  C.  Torts,  294.  But,  if 
the  shame  and  sense  of  disgrace  had  already  befallen  his  family  by 
the  daughter's  cond\ict,  the  defendant  could  hardly  be  liable  for  any 
thing  beyond  tht  loss  of  service. 


§  4.]  ENTICEMENT   AND   SEDUCTION.  149 

longs  to  him  alone.  Should  he  be  removed  b}-  the  law 
fa-om  his  natural  position  of  authority',  or  should  he  die 
during  the  child's  minority,  the  question  arises  of  the 
mother's  right  of  action  against  the  seducer.  It  is  clear 
if  the  guardianship  of  the  child  has  been  given  to  her,  she 
has  a  right  of  action  for  the  loss  of  service  ;  though  it  may 
be  doubted  if  at  the  present  tune  the  mere  relation  of. 
guardian,  apart  from  that  of  parent,  would,  iu  all  cases, 
afford  a  right  of  action  for  the  child's  seduction,  —  a  point 
to  be  further  adverted  to  in  the  next  section. 

If,  upon  the  death  of  the  father,  or  upon  his  removal  by 
the  law  from  the  position  of  guardian,  the  guardianship 
and  custody  of  the  daughter  should  be  granted  to  a  third 
person,  the  mother  could  not  maintain  an  action  for  the 
subsequent  seduction  of  her  daughter  ;  and  the  same  would 
be  true,  where  the  mother  having  received  the  guardian- 
ship from  court  or  having  continued  to  receive  obedience 
and  service  from  the  daughter,  should  bind  her  out  to  the 
service  of  another.  This  follows  from  what  has  been  said 
concerning  the  rights  of  the  father. 

A  dilliculty  arises  where  the  mother,  upon  the  death  of 
the  father,  or  his  removal  from  the  guardiansliip,  simply 
continues  to  exercise  authorit}'  over  her  daughter,  and  to 
receive  her  (voluntary)  obedience,  without  having  received 
an  appointment  as  guardian.  The  mother's  rigiit  of  action 
has  sometimes  been  supposed  to  turn  upon  the  question  of 
her  right  to  require  the  child's  support  in  such  a  case,  — 
a  doubtful  point  of  law.  It  is  now  well  settled,  however, 
that  so  long  as  the  daughter  continues  to  give  obedience 
and  service  to  her  mother,  the  latter  has  a  right  of  action 
for  a  wrongful  interruption  of  the  daughter's  position  of 
servant.^  For  example  :  The  defendant  seduces  the  minor 
daughter  of  the  plaintiff,  a  widow.  The  daughter,  having 
previously  been  in  the  service  of  the  defendant,  and  then 

1  This  also  follows  from  what  has  been  said  in  §  2,  sujjra. 


150  DUTIES  OF  INDIVIDUALS  INTER  SE.   [Chap.  VH. 

in  the  service  of  D.,  returns  from  the  latter  person  to  her 
mother  to  aid  her  during  sicliness  in  the  family.  While 
thus  with  her  mother  for  a  day  or  two,  she  is  got  with 
child  b}'  the  defendant.  The  defendant  has  violated  a 
legal  duty  to  the  plaintiff,  and  is  liable  in  damages.^ 

The  authority  from  which  this  example  has  been  givei\ 
went  one  step  further,  and  decided  that  the  mother's  right' 
of  action  was  not  affected  b}^  the  fact  that  the  daughter, 
when  seduced,  was  actuall}^  in  the  service  of  another,  so 
long  as  she  indicated  a  willingness  to  consider  her  mother 
as  still  entitled  to  her  assistance ;  though  the  case  would 
have  been  different  had  the  mother  herself  hired  her 
daughter  out. 

Whether  this  position  of  the  mother's  right  of  action  for 
her  daughter's  seduction  while  actuall}'  rendering  assistance 
to  her,  though  in  the  employ  of  a  third  person,  would  be 
controverted  is  not  clear.  But  it  has  been  a  question  of 
disputed  authority  if  the  mother  can  sue  when  the  seduc- 
tion, in  such  a  case,  occurs  not  at  the  mother's  house  while 
the  daughter  is  assisting  her,  but  at  the  house  of  her  em- 
plo3'er ;  supposing  the  mother  not  to  have  hired  out  her 
daughter,  but  merely  consented  to  her  departure.  If,  in  a 
case  of  this  kind,  the  daughter  should  not  return  to  her 
mother  during  her  illness,  the  mother's  right  of  action 
must  turn  wholl}'  upon  her  right  to  require  her  daughter's 
services.  In  other  words,  is  the  mother's  position,  after 
the  termination  of  the  father's  guardianship,  equal  in  point 
of  right  and  authority  to  the  father's  ?  It  has  already  been 
suggested  that  this  is  an  unsettled  question ;  but  very 
strong  reasons  can  be  given  in  favor  of  an  affirmative 
answer.^ 

There  is  also  conflict  of  authority  concerning  the  mother's 

»  Gray  v.  Durland,  51  N.  Y.  424. 

2  The  autlior  has  given  the  subject  consideration  in  his  Leading 
Caves  on  Torts,  at  p.  302. 


§  4.j  ENTICEMENT   AND   SEDUCTION.  151 

right  of  action  in  such  cases  where  the  daughter  in  her 
ilhiess  returns  to  her  mother,  and  is  supported  and  cared 
for  during  her  sickness.  The  daughter's  return,  however, 
under  such  circumstances  does  not  indicate  that  she  had 
an}'  intention  of  returning  before  the  seduction  ;  and,  un- 
less the  mother  is  considered  to  have  the  legal  right  to 
require  her  daughter's  service,  it  is  difficult  to  see  how  she 
can  be  entitled  to  sue  for  the  seductiou  in  a  case  of  that 
kind.^ 

At  common  law,  the  child  is  not  entitled  to  sue  for  her 
own  seduction,  since  she  has  consented  to  the  act.  But 
this  rule  has  been  changed  by  statute  in  some  of  the  States 
so  as  to  give  the  young  woman  a  right  of  action  in  case  she 
has  actually  been  seduced  from  virtue  by  the  defendant. 
And  even  at  common  law,  if  the  seduction  was  effected 
under  a  promise  of  marriage,  which  is  afterwards  broken, 
the  young  woman  has  a  riglit  of  action ;  but  the  action  is 
for  the  breach  of  promise  of  marriage,  and  not  for  the 
seduction.  The  seduction  in  such  a  case,  however,  enti-, 
ties  her  to  aggi-avation  of  damages. 

For  the  same  reason  which  at  common  law  precludes  the 
daughter  from  suing,  the  parent  is  barred  if  he  consented 
to  the  act,  or  perhaps  if  he  facilitated  it  by  his  own  mis- 
conduct in  respect  of  the  morals  of  his  daughter.  For 
example  :  The  defendant  is  permitted    by  the  i)luintiff  to 

1  The  motlier's  rijilit  of  action  in  such  cfises  is  denied  in  South  y. 
Denniston.  '2   Wiitts,  474;  Roberts   v.  Connelly,  14  Ala.  235.     It  is 

supported  in  Sargent  v. ,  5  Cowen,  106.     It  is  obvious  that  the 

rules  of  law  as  to  cases  like  those  stated  must  remain  in  uncertainty 
and  conflict  until  the  nature  of  the  mother's  authority  is  definitely 
settled ;  and  a  uniform  legislation  seems  required  for  the  purpose. 
Indeed  the  nature  of  the  father's  rights  has  possibly  been  rendered 
somewhat  uncertain  by  modern  decisions,  declaring  that,  except 
through  the  operation  of  the  criminal  law  or  the  poor  laws,  he  is  not 
bound  to  support  his  cliildren.  See  Bageley  v.  Fordcr,  Law  R.  3 
Q.  B.  559,  Cockburn,  C.  J.;  Kelley  v.  Davis,  49  N.  H.  187;  Bigelow'a 
L.  C.  Torts,  298-300. 


loii  DUTIES  OF  INDIVIDUALS  INTER   SE.    [Chap.  VIL 

visit  his  daughter  as  a  suitor,  after  notice  that  he  is  a  mar- 
ried man  and  a  libertine  ;  the  defendant,  on  inquiry  by  the 
plaintiff  as  to  this  matter,  representing  that  his  wife  is 
an  abandoned  character,  and  that  he  will  soon  obtain  a 
divorce  from  her,  and  then  marry  the  plaintiff's  daughter. 
The  defendant  afterwards,  while  continuing  his  visits  at 
the  plaintiff's  house,  seduces  the  3"oung  woman.  The 
plaintiff  is  not  entitled  to  recover  for  the  seduction.^ 

§  5.    Of  Guardian  and  "Wakd. 

Not  only  the  parent,  but  any  one  standing  in  loco  paren- 
tis^ and  being  entitled  to,  or  receiving,  in  his  own  right, 
the  services  of  a  child  under  majority,  is  entitled  to  main- 
tain an  action  for  loss  of  services  against  any  one  who 
wrongfully  interrupts  the  rendering  of  them,  or  makes  the 
full  rendering  of  them  impossible.  For  example :  The 
defendant  seduces  the  plaintiff's  niece,  the  parents  of  the 
young  woman  being  dead,  and  the  plaintiff  standing  in  loco 
parentis.  The  defendant  is  hable,  though  the  young  woman 
has  propert}^  left  her  by  her  parents,  and  performs  but 
slight  services.^ 

A  step-father,  not  bound  to  care  for  his  step-daughter, 
cannot  sue  for  her  seduction  unless  she  was  at  the  time  of 
the  seduction  actually  giving  submission  to  him.  For  ex- 
ample :  The  defendant  seduces  the  plaintiff's  step-daughter 
while  she  is  at  service  on  her  own  account  at  the  defend-" 
ant's  father's.  After  the  seduction,  she  returns  to  the 
plaintiff's  house  where  she  has  lived  for  twelve  years  before 
entering  service  for  the  defendant's  father.  The  defendant 
has  not  violated  any  duty  to  the  plaintiff.^ 

1  Koddie  v.  Scoolt,  Peake,  240.     But  comp.  p.  158. 

2  Manvell  v.  Thompson,  2  Car.  &  P.  303.  And,  as  in  the  case  of 
an  action  by  the  father,  damages  may  be  given  beyond  the  value  of 
the  services.  Irwin  v,  Dearman,  11  East,  23;  IngersoU  ».  Jones,  6 
Barb.  061.  »  Bartley  v.  Eichtmyer,  4  Corast.  38. 


§  6.]  ENTICEMENT  AND  SEDUCTION.  153 

The  right  of  action  in  all  such  cases,  and  in  cases  strictly 
of  guardian  and  ward,  depends  (probably)  upon  the  right 
of  the  guardian  or  -person  standing  in  loco  parentis  to  re- 
ceive the  services  to  his  own  benefit.  If  the  guardian  have 
merely  the  supenision  of  the  ward  and  her  income,  while 
she  lives  elsewhere,  or  performs  service  elsewhere,  the 
guardian  simply  receiving  her  wages  and  acting  as  her 
trustee,  it  is  improbable  that  he  can  sue  for  her  seduction. 

§  6.    Of  Husband  and  Wife. 

To  entice  awa}-,  or  to  corrupt  the  mind  and  affections  of 
one's  consort  is  a  civil  wrong  for  which  the  offender  is  liable 
to  the  injured  husband  or  wife  ;  though  not  perhaps  to  the 
part}'  enticed  or  cornipted,  unless  the  act  was  accomplished 
by  fraud  or  violence. 

The  gist  of  the  action,  however,  is  not  the  loss  of  assist- 
ance, but  the  loss  of  the  consortium  of  the  wife  or  husband, 
under  which  term  is  usually  included  the  person's  affec- 
tion, societ}',  or  aid.  But  it  is  not  necessary  that  there 
should  be  any  separation  or  pecuniary  injury  ;  in  which 
respect  the  action  resembles  that  of  a  parent  fur  the  seduc- 
tion of  his  daughter.  For  example  :  The  defendant,  by 
false  insinuations  against  the  plaintiff,  and  other  insidious 
wiles,  so  prejudices  and  poisons  the  mind  of  the  plaintifl"s 
wife  against  him,  and  so  alienates  her  affections  from  him, 
as  to  induce  her  to  desu'c  and  seek  to  obtain,  without  just 
cause,  a  divorce ;  and  by  his  false  insinuations  and  wiles 
succeeds  in  persuading  his  wife  to  refuse  to  recognize  the 
plaintiff  as  her  husband.  The  defendant  is  liable  ;  though 
no  actual  absence  of  the  wife  is  caused.^ 

This  example,  it  will  be  observed,  does  not  go  to  the 
extent  of  declaring  a  person  hable  for  enticing  away  or 
corrupting  the  affections  of  the  wife  by  reason  of  charges 

1  Heermance  v.  James,  47  Barb.  120. 


I'A         DUTIES  OF  INDIVIDUALS  INTER  SE.   [Chap.  VIL 

against  the  husband  which  are  true  ;  but  there  can  be  httle 
doubt  that  such  an  act  would  be  a  breach  of  duty  to  the 
husband. ■■  The  constancy  and  affection  of  a  wife  are  all 
the  more  valuable  to  him  if  his  conduct  is  bad,  since  they 
may  save  him  from  ruin. 

A  difference  is  deemed  to  exist,  however,  between  the 
act  of  a  parent  and  that  of  other  persons  with  regard  to 
persuading  a  wife  to  leave  her  husband.  In  the  case  of 
one  not  a  parent,  it  is  not  necessary  that  bad  motives 
should  have  inspired  the  act.^  Such  a  person  has  no  right 
to  entice  or  persuade  a  wife  to  leave  her  husband.  It  does 
not  follow,  however,  that  mere  advice  to  a  married  woman 
by  a  sti'anger  to  leave  her  husband,  upon  representations 
by  the  wife,  would  be  unlawful :  advice  in  such  a  case  is 
one  thing,  and  enticement  is  another. 

In  regard  to  a  parent,  however,  it  is  considered  that  it  is 
no  breach  of  duty  to  the  husband  for  such  a  person,  upon 
information  that  his  daughter  is  treated  with  cruelty  by  her 
husband  or  is  subjected  to  other  gross  indignities  such  as 
would  justify  a  divorce,  to  advise,  or  perhaps  to  persuade, 
her  to  depart  from  her  husband ;  though  it  subsequently 
appear  that  the  advice  or  persuasion  was  based  on  wrong 
information.^  It  is  held  that  bad  motives  must  have  actu- 
ated the  parent  in  order  to  make  him  hable.^  This  seems 
to  mean  that  the  parent  must  either  have  enticed  his 
daughter  to  leave  or  to  stay  away  out  of  ill-will  towards 
her  husband,  and  not  by  reason  of  any  good  ground  for 
their  separation ;  or  that  he  must  have  some  end  to  gain 
of  personal  benefit  to  himself.     In  the  absence  of  facts  of 

1  See  Bromley  v.  Wallace,  4  Esp.  237.  The  conduct  of  the  hus- 
band could  be  shown  only  in  mitif^ation  of  damages.     lb. 

2  See  Hutcheson  v.  Peck,  5  Johns.  196;  Bennett  v.  Smith,  21 
Barb.  439. 

3  Bennett  v.  Smith,  21  Barb.  439,  443. 
*  Hutcheson  v.  Peck,  supra. 


§  C]  ENTICEMENT  AND   SEDUCTION.  155 

this  character,  the  parent  is  not  liable  for  persuading  his 
daughter  to  absent  herself  from  her  husband  on  infui-nia- 
tion  justifying  (if  true)  a  divorce  ;  though  a  stranger  in 
blood  would  be  liable.  The  pai'ent  may  therefore  persuade, 
where  a  stranger  may  onl}'  advise. 

Where  a  separation  has  already  taken  place  before  the 
act  complained  of  was  committed,  the  rule  of  law  is  said 
to  be,  that  any  person  who  receives  a  man-ied  woman  into 
his  house,  or  suffers  her  to  stay  there  after  receiving  notice 
from  the  husband  not  to  harbor  her,  violates  a  dut}'  which 
he  owes  to  the  husband,  unless  the  husband  has  b}'  his 
cruelty  or  other  misconduct  forfeited  his  marital  rights,^  or, 
it  should  be  added,  unless  the  sepai-ation  was  made  under 
articles  of  agreement  therefor.  For  example :  The  de- 
fendant receives  the  plaintiff's  wife  into  his  house  upon 
representations  of  ill-treatment  by  her  husband ;  and  he 
continues  to  permit  her  to  remain  there  after  notice  from 
the  plaintiff  not  to  do  so.  The  defendant  is  deemed  to  be 
guilt}'  of  a  breach  of  duty  to  the  plaintiff;  supposing  the 
wife's  representations  to  be  false. ^ 

This  doctrine,  however,  must  (probably)  be  limited  to 
cases  in  which  the  defendant  has  clear  notice  that  the  wife's 
act  in  coming  to  him,  or  in  staying  with  him,  is  intended 
as  a  separation  by  her  from  her  husbnnd,  and  a  repudia- 
tion of  his  claims  as  such.  A  man  cannot  at  the  present 
da}'  be  liable  in  damages  for  allowing  a  married  woman  to 
remain  in  his  house  a  few  days  after  notice  not  to  do  so,  if 
she  deny  that  she  has  abandoned  her  husband  and  claim 
that  she  is  merely  visiting,  or  tliat  she  is  away  from  home 
for  some  other  teraporar}'  and  reasonable  purpose.  The 
defendant's  liability,  when  it  exists,  rests  upon  the  ground 
that  he  is  a  party  to  the  unlaAvful  purpose  of  depriving  the 
plaintiff  of  the  benefit  of  some  advantage  embraced  under 

1  Addison,  Torts,  905  (4th  ed.). 

2  riiilp  V.  Squire,  Peake,  82. 


156  DUTIES  OF  INDIVIDUALS   INTER   SE.    [Chap.  VIL 

the  designation  of  the  consortium  of  his  -wife.^  If  the  wife 
were  disposed  to  sta}'  an  unreasonable  length  of  time  after 
notice  from  the  husband,  that  fact  would  perhaps  be  suffi- 
cient to  cause  him  to  suspect  her  tnie  purpose,  and  to  ren- 
der him  liable  in  case  he  continue  to  permit  her  to  remain. 
It  is  settled  law  that  the  mere  fact  of  receiving  another's 
wife  is  not  unlawful,  even  though  no  exjilanation  whatever 
be  offered.^  There  must  be  an  enticing  or  harboring  with 
reference  to  a  wrongful  separation.  It  is  not  enough  even 
that  the  defendant  take  the  plaintiff's  wife  to  the  defend- 
ant's house,  upon  request  by  her,  unless  he  has  notice  that 
she  is  abandoning  her  husband  ;  though  he  has  been  re- 
quired by  the  plaintiff  not  to  harbor  her.  For  example : 
The  defendant  and  the  plaintiff  are  farmers  and  neighbors, 
residing  about  two  miles  apart.  Their  wives  are  relatives, 
and  the  plaintiff's  wife  often  visits  the  defendant's ;  the 
defendant  taking  her  to  his  house  in  his  wagon.  The  plain- 
tiff's wife  on  one  occasion  being  so  at  the  defendant's  house, 
the  plaintiff  gives  the  defendant  written  notice  not  to  har- 
bor her,  but  to  return  her  to  his  residence  from  which  he 
(the  defendant)  has  taken  her.  The  defendant  having 
stopped  with  the  lady  near  her  husband's  house,  she  goes  to 
enter  it,  but  finds  the  door  locked,  and  returns  to  the  de- 
fendant, requesting  him  to  take  her  to  his  house.  The 
defendant  shows  her  the  notice,  and  advises  her  not  to  go, 
but  she  makes  light  of  the  notice,  and  is  taken  to  the  de- 
fendant's house.  The  next  day  the  defendant  carries  her 
home ;  and  the  plaintiff  brings  suit  for  the  harboring. 
The  action  is  not  maintainable  ;  the  defendant  not  having 
attempted  to  influence  the  wife  to  leave  her  husband.^ 

1  See  Barnes  i;.  Allen,  1  Keyes,  .390 ;  Hutcheson  v.  Peck,  5  Johns. 
196 ;  Schuneman  v.  Palmer,  4  Barb.  225. 

'^  Barnes  v.  Allen,  1  Keyes,  390 ;  Schuneman  v.  Palmer,  4  Barb. 
225. 

8  Schmieman  v.  Palmer,  supra. 


§G.]  ENTICEMENT  AND   SEDUCTION.  157 

Further,  it  follows  from  what  has  already  been  stated, 
that  in  the  case  of  a  parent  it  is  sufficient  to  justily  liis 
receiving  his  daughter,  and  refusing  to  turn  lier  out  of 
doors,  that  he  has  information  such  as,  if  true,  would 
entitle  the  wife  to  a  divorce  ;  though  the  information  after- 
wards turn  out  to  be  false.  A  stranger,  according  to  the 
proposition  under  consideration,  and  judicial  authority,^ 
would  need  to  show  the  truth  of  the  information. 

The  right  of  action  for  seducing  and  debauching  a  man's 
wife  rests  upon  the  same  ground  as  that  for  the  enticement 
or  harboring  of  her,  to  wit,  the  loss  of  consortium,'^  and 
arises  therefore  without  regard  to  the  infliction  of  pecu- 
niary damage.* 

It  follows  that  upon  separation,  by  articles  of  agreement 
the  husband,  having  voluntarily  parted  with  his  wife's  con- 
sortium, cannot  maintain  an  action  for  criminal  conversa- 
tion with  his  wife.*  But  if  the  sepai'ation  was  without  any 
rehnquishment  by  the  husband  of  his  right  to  the  society 
of  his  wife,  the  action  is  maintainable.  For  example  : 
The  defendant,  having  entered  into  a  contract  for  the  sup- 
port of  the  plaintiff's  wife  at  his  (the  defendant's)  house, 
the  wife  goes  there  under  the  agreement,  and  the  defend- 
ant seduces  her.  The  act  is  a  breach  of  duty  to  the  plain- 
tiff, for  which  the  defendant  is  liable.^ 

The  mere  fact  of  the  husband's  infidelity  to  his  wife  does 
not  change  the  nature  of  the  defendant's  act  in  seducing 
and  debauching  her ;  though  it  ma}'  possibly,  in  contem- 
plation of  law,  affect  its  enormity.  For  example :  The 
defendant  seduces  and  has  criminal  intercoui'se  with  the 

1  Philp  V.  Squire,  Peake,  82. 

2  Weedon  v.  Timbrell,  5  T.  R.  357. 

8  "Wilson  V.  Webster,  7  Car.  &  P.  198. 
*  Harvey  i'.  W^atson,  7  Man.  &  G.  644. 

6  See  Barber  r.  Arrastead,  10  Tred.  530;  Chambers  v.  Caulfleld, 
6  East,  244.     Weedon  v.  Timbrell  has  been  limited  to  this  extent. 


158         DUTIES  OF  IXDIVIDU.\XS   INTER  SE.   [Cum  VH 

plaintiff's  wife.  Proof  is  offered  by  the  defendant  that 
the  plaintiff  had  shown  the  greatest  indifference  and  want 
of  atfection  towards  his  wife ;  that  while  she  lay  danger- 
ously ill  at  Y.,  the  plaintiff  (a  nav}'  surgeon),  though  his 
vessel  was  at  Y. ,  and  he  landed  almost  daily,  Avas  often  at 
the  door  of  the  house  where  his  wife  la}^  sick,  without  visit- 
ing her,  or  showing  any  anxiety  or  concern  for  her ;  and  at 
the  same  time  that  he  had  been  guilty  of  adulter}-  and  had 
contracted  a  venereal  disease.  This  is  no  defence  to  the 
action ;  ^  though  it  might  be  considered  in  mitigation  of 
damages.^ 

If,  however,  the  husband  was  accessor}'  to  his  own  dis- 
honor, the  case  is  different :  he  could  not  complain  of  an 
injury  to  which  he  had  consented.^  For  example :  The 
plaintiff  allows  his  wife  to  live  as  a  prostitute,  and  the  de- 
fendant then  has  intercourse  with  her.  This  is  no  breach 
of  dut}-  to  the  plaintiff.* 

Mere  negligence  as  to  the  wife's  behavior,  inattention, 
or  dulness  of  apprehension,  or  even  permission  of  indecent 
familiarit}'  in  the  husband's  presence,  are,  however,  deemed 
insufficient  to  bar  a  recover}'  for  criminal  conversation  with 
the  wife  ;  though  such  facts  might  be  proved  in  reduction 
of  damages.  Unless  the  conduct  of  the  husband  amount 
to  consent  to  the  defendant's  act  of  intercourse,  the  defend- 
ant is  liable.^ 

It  follows  from  what  has  been  said  that  condonation  of 
the  wife's  offence  does  not  excuse  the  man  who  debauched 
her :  the  sole  consequence  of  the  condonation  is  to  preclude 

1  Bromley  v.  Wallace,  4  Esp.  237,  overruling  Wyndham  v.  Wy- 
combe, lb.  16. 

2  lb.    Rea  V.  Tucker,  51  111.  110. 
8  T  'oletiti  non  Jit  injuria. 

*  See  Sanborn  v.  Neilson,  4  N.  H.  501.  This  case  decides  that  the 
husband's  connivance  at  his  wife's  intercourse  with  other  men  than 
the  defendant  does  not  excuse  the  defendant. 

6  2  Greenleaf,  Evidence,  §§  61,  50;  Bigelow's  L.  C.  Torts,  338. 
But  comp.  pp.  151,  152,  ante. 


§  6.]  ENTICEMENT  AND  SEDUCTION.  159 

the  husband  from  obtaining  a  divorce.  For  example  :  The 
defendant  has  criminal  intercourse  with  the  plaintift's  wife, 
and,  when  fatall}'  sick,  she  discloses  the  fact  to  her  hus- 
band. The  plaintiff  continues  to  care  for  her  kindly  until 
her  death.     The  defendant  is  Uable.^ 

1  WUson  0.  Webster,  7  Car.  &  P.  198. 


160         DUTIES  OF  INDIVrDUALS  INTER  SE.   [Chap.  VIU. 


CHAPTER  Vin. 

TRESPASSES   UPON  PROPERTY. 

§  1.    Introductort, 

Statement  of  the  duty.  A  owes  to  B  the  duty  (1)  to  for- 
bear to  enter  the  latter's  close  without  permission ;  (2)  to 
forbear  to  take  possession  of  the  latter's  chattels,  or  de- 
prive hun  of  his  possession  thereof  (the  same  being  in  B's 
hands)  without  permission ;  unless,  in  either  case,  he  has 
a  better  right  than  B  has  to  the  possession  of  the  property. 

OBSERVATIONS. 

1.  The  tei-m  "close"  signiiies  a  tract  of  land,  whether 
phj-sically  enclosed  or  not. 

2.  "  Breaking  and  entering  the  close  "  is  an  ancient  term 
of  the  law,  commonly  used  in  pleading,  indicating  an 
unlawful  entry  upon  laud.  The  tenn  "entr}'"  or  "un- 
lawful entry  "  will  be  used  in  the  present  chapter  as  synony- 
mous to  "breaking  and  entering,"  unless  the  contrary  be 
indicated. 

3.  A  trespass  to  land  is  an  unlawful  entry  upon  land :  a 
trespass  to  goods  is  an  unlawful  taking  of  goods.  All 
other  wrongful  acts  connected  with  the  trespass  are  aggra- 
vation of  the  trespass. 

§  2.  Of  Possession. 

In  order  to  maintain  an  action  solely  for  damages  for  a 
trespass  to  land,  and  not  merely  for  the  recovery  of  the 
land,  it  is  necessary  for  the  plaintiff  (if  not  a  reversioner 
or  remainder-man)   to   have   possession   of  the   premises 


§  2.]  TRESPASSES  UPON  PROPERTY.  IHl 

entered  at  the  time  of  the  entrj'.  A  person  who  enters 
the  land  of  another  without  the  hitter's  permission,  the 
latter  having  been  previously  unlawfully  deprived  of 
possession  or  the  land  having  never  been  in  his  pos- 
session, may,  indeed,  violate  a  duty  to  the  person  enti- 
tled to  the  possession ;  but  the  law  requires  the  latter  to 
get  possession  of  the  land  before  giving  him  damages  for 
the  wrong  committed. 

If,  however,  the  party  had  possession  at  the  time  of  the 
entry,  and  the  trespasser  ejected  him,  it  would  not  be 
necessary  for  him  to  recover  possession  before  he  could  sue 
for  damages  for  the  wrongful  entry  and  expulsion  :  he  had 
possession  at  the  time  of  the  trespass  and  disseisin,  and 
that  is  sufficient  for  the  purposes  of  such  an  action.^  He 
could  not,  however,  recover  damages  for  the  loss  sustained 
by  reason  of  the  disseisor's  occupancy,  until  after  a  re-entry,- 
—  a  point  to  be  ftirther  considered  hereafter. 

On  the  other  hand,  possession  at  the  time  of  the  entry, 
if  held  under  a  claim  of  right,  is  prima  facie  sufficient  in  all 
cases  to  enable  a  person  to  maintain  an  action  for  an  entry 
upon  the  land  without  permission  ;  and  possession  merely 
is  not  on]y  prima  facie  but  absolutely  sufficient  against  all 
persons  who  have  not  a  better  right  than  tlie  possessor. 
It  follows  that  one  who  is  in  possession  of  land  under  a 
claim  of  title,  though  without  right,  ma}'  recover  for  an 
entry  by  a  wrong-doer ;  that  is,  bj^  one  who  enters  without 
a  right  to  do  so.  For  example :  The  defendant  enters 
without  permission  upon  enclosed  land  in  the  possession 
of  the  plaintiff.  The  plaintiff,  being  grantee  of  land  from 
the  State,  has  taken  possession  wi-ongfuU}'  of  more  than 
his  deed  conveys  ;  and  the  defendant's  entr^'  is  made  upon 
that  part  of  the  tract  in  the  plaintiff's  possession  which  was 
not  conveyed  to  him.     The  defendant  is  liable.* 

^  1  Case  I'.  Shepherd,  2  Johns.  Cas.  27.  ^  jb. 

^  8  Cutts  V.  Spring,  15  Mass.  135 ;  s.  c.  Bigclow's  L  C.  Torts,  341. 

11 


162         DUTIES  or  INDIVIDUALS  INTER  SE.    [Chap.  VIIL 

The  defendant  is  not  necessarily  guilty  of  a  breach  of 
duty  to  such  a  possessor  by  reason  of  the  fact  that  he  is 
not  the  owner  of  the  land.  He  may  still  have  a  legal  or 
equitable  interest  in  the  premises  ;  he  ma}'  be  a  lessee  of 
the  land,  or  he  may  be  a  trustee  of  the  same  or  the  latter's 
cestui  que  trust.  In  any  of  these  cases,  he  would  be  enti- 
tled to  enter  upon  the  premises,  if  he  could  do  so  without 
breaking  the  peace.  Indeed,  a  licensee  may  have  a  right 
to  make  a  peaceable  entry,  though  he  has  no  interest  what- 
ever in  the  soil,  and  could  have  no  right  of  entr}'  against 
a  person  entitled  to  the  possession.  For  example :  The 
defendant  enters  without  permission  premises  of  which  the 
plaintiff  is  wrongfull}'  in  possession ;  the  act  being  done 
by  direction  of  the  owner  of  the  land,  who  is  entitled  to 
possession.  The  defendant  violates  no  duty  to  the  plain- 
tiff ;  ^  though  the  case  would  have  been  different  had  he 
entered  without  authority  of  the  owner. ^ 

If  there  be  two  persons  in  a  close,  each  asserting  that 
the  premises  are  his,  and  each  doing  some  act  in  the  asser- 
tion of  the  right  of  possession,  he  who  has  the  better  title 
or  right  is  considered  as  being  in  possession  ;  and  the  other 
is  a  trespasser.  The  former  is  therefore  in  a  position  to 
demand  damages  of  the  latter  for  his  wrongful  eutr}'.  For 
example :  The  defendant  is  in  possession  of  land  jointly 
with  the  plaintiff,  claiming  to  be  a  tenant  in  common  of 
the  premises  with  the  plaintiff.  His  claim,  however,  is  un- 
founded, and  the  plaintiff  is  owner  of  the  close.  The 
defendant  may  be  treated  by  the  plaintiff  as  a  trespasser 
and  sued  in  damages.^ 

If  neither  of  the  parties  in  possession  has  a  right  to  the 

1  Chambers  v.  Donaldson,  11  East,  G5. 

2  The  subject  of  rights  of  entry  in  general  will  be  considered  here- 
after, §  3.  It  is  introduced  here  merely  to  show  the  consequences  of 
possession.  '' 

8  Ilunting  V.  Russell,  2  Cush.  145.  , 


§  2]       TRESPASSES  UPON  PROPERTY.       163 

L'  close,  the  question  whether  either  of  them  has  violated  a 
'  clutj'  to  the  other,  supposing  each  to  claim  the  exclusive 
possession,  will  depend  upon  the  priorit}'  of  entry.  The 
one  who  first  entered,  if  his  possession  be  continuous,  will 
be  entitled  to  the  possession  as  against  the  other,  and  the 
latter  will  be  a  trespasser.  For  example  :  The  defendants 
claim  a  right  to  take  cranberries  in  an  unoccupied  field 
under  a  license  from  one  H.  The  plaintiffs  have  previously 
entered  into  possession  of  the  land,  and  forbidden  all  per- 
sons by  public  notice  to  take  cranberries  therefrom,  except 
on  certain  conditions  with  which  the  defendants  do  not 
comply.  H.,  under  whom  the  defendants  claim,  had  en- 
tered before  the  entry  of  the  defendants  ;  but  neither  H., 
nor  the  defendants,  nor  the  plaintiffs  have  any  right  to  the 
soil  or  the  berries.  The  defendants  have  violated  no  duty 
to  the  plaintiffs.^ 

Interference  with  a  man's  possession  of  personal  prop- 
erty, without  permission,  is  in  like  manner  a  trespass,  un- 
less done  by  one  having  a  better  right  than  the  possessor. 
In  other  words,  a  defendant  in  an  action  for  trespass 
to  goods  cannot  deny  tlie  plaintiff"s  right  of  possession 
(the  same  not  being  acquired  by  theft,  violence,  or  other 
wrongful  act) ,  unless  he  can  show  a  better  right  in  himself 
or  an  authority  from  one  having  a  better  right  than  the 
plaintiff.^  For  example  :  The  defendant,  an  officer  of  the 
army  of  the  United  States,  takes  a  horse  out  of  the  plain- 
tiff's possession,  which  has  been  captured  in  war  by  the 
army,  and  has  then  fallen  into  possession  of  the  plaintiff; 
who,  however,  has  no  title  or  right  of  possession  against  the 
government.  The  defendant  acts  under  the  orders  of  a 
superior  officer,  who  has  no  authority  from  the  government 
to  give  the  order.    The  defendant's  act  is  a  breach  of  duty 

1  Barnstable  v.  Thacher,  3  Met.  239. 
^2  Cook  V.  Howard,  13  Johns.  276;^Demick  v.  Chapman,  11  Johns. 
132  jvOutcalt  V.  Durhng,  1  Dutch.  443. 


164         DUTIES  OF  INDIVIDUALS  INTER  SE.  [Chap.  VHI. 

to  the  plaintiff,  for  which  he  is  liable  in  damages.^  Again : 
The  defendant,  a  constable,  levies  upon,  and  takes  away 
■without  permission,  a  horse  in  the  plaintiff's  possession 
as  the  horse  of  A.  A  is  the  owner  of  the  animal,  but 
the  plaintiff  has  a  lien  upon  it.  The  defendant's  act  in 
taking  the  horse  out  of  the  plaintiff's  possession  is  a 
trespass.^ 

It  should  be  explained  in  this  connection  that  by  the 
common-law  rules  of  pleading,  and  probably  by  the  rules 
of  pleading  generally  prevailing  at  the  present  time,  it  is 
incumbent  upon  the  plaintiff  in  an  action  either  of  tres- 
pass, trover,  or  replevin  (the  last  named  being  an  action 
to  recover  specific  goods) ,  to  allege  that  the  property  is 
his.  But  this  allegation  is  deemed  to  be  fulfilled  by  evi- 
dence that  he  came  into  possession  of  the  goods  in  a  law- 
ful maiiner,  whether  by  sale,  exjDress  bailment  by  the 
owner,  or  by  finding  ;  and  then,  unless  the  defendant  show 
a  better  right,  the  plaintiff  is  entitled  to  recover.  The 
custodj"  of  a  mere  sen^ant,  not  a  bailee,  of  his  master's 
goods  is,  however,  deemed  insufficient.^ 

Evidence  that  the  plaintiff  had  acquired  his  possession 
by  theft,  violence,  or  other  wrongful  act,  without  title  or 
right,  would  not  support  the  allegation  of  property ;  and  it 
follows  that  such  a  person  could  not  claim  that  the  act 
of  the  defendant  in  interfering  with  his  possession  was  a 
breach  of  duty.* 

A  reversioner  or  remainder-man  can  maintain  an  action 
for  injuries  done  to  his  interest,  notwithstanding  the  fact 
that  the  land  is  in  the  possession  of  a  tenant.  Injuries 
done  to  such  interests  are  not,  however,  in  strictness  tres- 
passes, but  at  most  only  the  consequences  of  trespasses. 

1  Cook  V.  Howard,  siipra.  ^  Outcalt  v.  Durling,  supra. 

•^  *  Harris  v.  Smith,  3  Serg.  &  R.  20 ;  Hampton  v.  Brown,  13  Ired.  18. 

*  Buckley  v.  Gross,  3  Best  &  S.  666;  Kemp  v.  Thompson,  17 
Ala.  9.     See  post,  pp.  187,  188. 


§  2.]       TRESPASSES  UPON  PROPERTY.       165 

The  trespass  consists  in  the  wrongful  entrj-  upon  the  land, 
and  this  is  a  tort  to  the  tenant,  and  not  to  the  landlord  or 
remainder-man  ;  since  it  is  an  interference  with  the  posses- 
sion, which  belongs  to  the  tenant.'  For  example :  The 
defendant  enters  upon  the  plaintiff's  land,  held  by  a  ten- 
ant, in  the  assertion  of  an  alleged  right  of  wa}-,  driving 
thereon  his  horses  and  cart,  and  continuing  so  to  do  after 
notice  from  the  plaintiff  to  quit.  The  defendant  has  vio- 
lated no  dutj'  to  the  plaintiff ;  though  he  would  be  liable  to 
the  tenant.^ 

A  common  law  tenant  at  will,  on  the  other  hand,  is 
deemed  to  have  no^possession  ;  and  the  possession  being 
in  the  owner,  he  is  in  a  situation  to  sue  for  the  wrongful 
entr}'  as  a  trespass  to  himself.  Vox  example  :  The  de- 
fendant wrongfully'  enters  the  plaintiff's  close  and  over- 
turns a  small  building  thereon,  while  the  close  is  in  the 
occupation  of  one  H.  ;  he  having  hired  the  premises  of  the 
plaintiff  upon  an  invalid  lease.  The  defendant's  entry  is 
a  trespass,  for  which  he  is  liable  to  the  plaintiff.^ 

Damage  done  to  the  inheritance  in  the  case  of  leasehold 
or  mortgaged  laud  is  waste  if  committed  hy  the  tenant  or 
mortgagor,  and  something  of  the  nature  of  a  trespass  if 
committed  by  a  stranger.  But  whatever  term  maj-  be 
applied  to  the  act,  it  is  a  breach  of  duty  to  the  landlord 
or  mortgagee,  for  which  he  is  entitled  to  recover  damages. 
For  example  :  The  defendant,  a  tenant,  or  a  mortgagor,  or 
a  licensee,  or  a  stranger,  cuts  down  trees  on  land  owned 
by  the  plaintiff,  or  of  which  he  is  mortgagee  or  remain- 
der-man, without  the  plaintiff's  consent.  This  is  a  breach 
of  dut}'  to  the  plaintiff,   and  the  defendant  is  liable  to 

^  It  follows,  where  the  common-law  system  of  pleadmg  prevails, 
that  the  landlord  or  remainder-man  cannot  sue  in  trespass  :  his  action 
ie  case.    Lienow  v.  Ritchie,  8  Pick.  235. 

-  Baxter  v.  Taylor,  4  Barn.  &  Ad.  72.     The  action  was  case. 

^  Starr  v.  Jackson,  11  Mass.  519. 


166         DUTIES  OF  INDIVIDUALS  INTER  SE.  [Chap.  VIIL 

him  in  damages ;  though  the  plaintiff  is  not  in  posses- 
sion.^ 

A  similar  rule  of  law  prevails  as  to  injuries  done  to  per- 
sonal property,  which  is  held  on  lease  or  bailment,  or  by  a 
mortgagor  in  possession.  For  an  injury  done  to  the  pos- 
sessor's interest  merely,  that  is,  for  a  simple  unlawful  tak- 
ing of  the  goods,  the  remedy  belongs  to  the  possessor 
alone  ;  but  for  an  injury  done  to  the  reversion  or  to  the 
mortgagee  if  the  goods  be  mortgaged,  the  lessor,  bailor, 
or  mortgagee  is  entitled  to  treat  the  act  as  a  breach  of 
duty  to  him  and  call  for  redress.^  For  example  :  The  de- 
fendant levies  on  and  sells  goods  in  the  possession  of  S., 
whose  right  to  the  possession  rests  upon  an  agreement  by 
the  plaintiff  to  convey  the  same  to  hun  upon  the  payment 
of  notes  given  therefor.  The  defendant  has  not  been  led 
b}'  the  plaintiff  to  suppose  that  the  goods  belong  to  S. :  on 
the  contrarj^,  the  defendant  has  notice  at  the  time  of  the 
levy  of  the  plaintiff's  title.  The  defendant's  act  in  dis- 
posing of  the  goods  is  a  breach  of  duty  to  the  plaintiff,  and 
he  is  liable  in  damages ;  though  the  right  of  possession 
is  in  S.^ 

There  exists,  however,  this  difference  with  reference  to 
the  possession  of  real  and  of  personal  property.  The 
ownership  of  personal  property  draws  to  the  owner  the 
possession  thereof  in  law,  and  not  merel}'^  the  right  of  pos- 
session, unless  the  owner  has  voluntarily  parted  with  his 
right  of  possession,  as  by  lease ;  while,  as  has  been  seen, 
the  ownership  (of  itself)  of  real  property'  draws  to  the 
owner  merely  the  right  of  possession  of  the  land.     It  fol- 

^  See  Young  v.  Spencer,  10  Barn.  &  C.  145 ;  Page  v.  Robinson,  10 
Cusli.  99  ;  Cole  v.  Stewart,  10  Cush.  181.  None  of  these  are  cases  of 
actions  by  remainder-men,  but  they  cover  such  cases  in  principle. 
The  form  of  action  at  common  law  is  case  and  not  trespass.  Living- 
Bton  V.  Mott,  2  Wend.  605 ;  Cannon  v.  Hatcher,  1  Hill  (S.  C),  260. 

2  In  case,  of  course,  at  common  law. 

*  Ayer  v.  Bartlett,  9  Pick.  156. 


§  2.]  TRESPASSES   UPON  PROPEIITY.  1G7 

lows  that  the  owner  of  personal  property,  unlike  the  owner 
of  real  property,  is,  by  mere  virtue  of  his  ownership  of  the 
same,  in  a  situation  to  recover  damages  for  an  unlawful 
interference  with  his  right  of  possession.  For  example : 
The  defendant,  without  permission,  takes  goods  out  of  the 
possession  of  A,  after  A  has  sold  them  to  the  plaintiif,  but 
before  thej-  have  been  delivered  to  the  plaintiff.  This  is  a 
trespass  to  the  plaiutiff.^ 

A  man's  close  iucludes  not  only  his  actually  enclosed 
laud,  but  also  all  adjoiuiug  unenclosed  lands  held  by 
hiui ;  and,  if  he  be  in  possession  of  any  part  of  his  prem- 
ises, he  is  in  possession  of  the  whole,  unless  other  parts  be 
occupied  by  tenants  or  by  persons  who  claim  adversely  to 
him.  The  owner  of  premises,  when  thus  in  possession  of 
the  whole,  is  considered  by  the  law  as  in  constructive  pos- 
session of  the  premises  belonging  to  him  which  adjoin  those 
hi  his  immediate  enclosure  ;  and  the  consequence  is,  that 
a  person  in  such  a  situation  is  in  a  proper  position  to  re- 
cover damages  for  trespasses  committed  in  any  part  of  his 
premises,  the  unenclosed  as  well  as  the  enclosed.  For  ex- 
ample :  The  defendant,  without  permission,  enters  and  cuts 
timber  in  an  open  woodland  of  the  plaintiff,  adjoining  a 
farm  upon  which  the  plaintiff  resides.  The  plaiutifi'  is 
deemed  to  be  in  constructive  possession  of  the  woodland, 
and  is  entitled  to  recover.^ 

The  highway  in  front  of  a  man's  premises  is  also  con- 
structively in  his  possession,  w^hen  the  soil  has  not  been 
conve^-ed  to  the  pubhc ;  and  while,  inasmuch  as  the  way 
has  been  dedicated  to  the  use  of  the  public  as  a  way,  no 
one  violates  a  duty  to  the  adjoiuiug  occupant  by  passiug 
over  the  land  thus  dedicated,  the  case  is  different  if  an 
attempt  be  made  to  exercise  rights  therein  not  contem- 

^  1  Bacon's  Abr.  Trespass  (C),  2 ;  Bigelow's  L.  C.  Torts,  370. 

2  Machin  v.  Geortner,  14  Wend.  239;  Penn  v.  Preston,  2  Rawle,  14 


168         DUTIES  OF  INDIVIDUALS  INTER  SE.    [Chai-.  VIII 

plated  in  the  dedication,  and  of  special  harm  to  the  ad- 
joining owuer.^  For  example  :  The  defendant  goes  upon 
premises  in  the  pubhc  highway,  in  front  of  land  of  the 
plaintiff  occupied  by  him,  and  on  the  plaintiff's  side  of 
the  highway,  and  there,  without  leave,  digs  up  the  soil. 
The  land  composing  the  highway  has  never  been  conve3'ed 
to  the  pubhc  ;  the  public  having  simpl}^  an  easement  in  the 
use  of  it.  The  defendant  has  violated  a  dut}'  to  the  plain- 
tiff, and  is  liable  to  him.^  Again  :  The  defendants,  a  turn- 
pike compan}',  go  upon  land  in  their  turnpike  lying  in  front 
of  and  next  to  the  plaintifl''s  premises,  and  without  license 
cut  away  the  herbage,  spontaneously  growing  there ;  not 
owning  the  land  in  the  way.  They  are  hable  to  the  plaintiff.* 
The  foregoing  propositions  in  regard  to  constructive 
possession  suppose  that  the  party  injured  has  a  right  to  the 
possession  of  the  enclosed  premises  actually  occupied  by 
him.  A  part}",  however,  who  is  in  possession  of  land  without 
title  or  right  can  have  no  such  constructive  possession  :  the 
riglits  of  a  bare  possessor  are  hmited  by  the  bounds  of  his 
actual  occupation.  For  example  :  The  defendant,  having 
wrongful  possession  of  the  south  end  of  a  lot,  cuts  timber 
upon  the  north  end  thereof,  lying  without  the  hraits  of  his 
actual  occupation ;  which  timber  has  been  purchased  and 
duly  marked  by  the  plaintiff.  The  land  on  which  the  tim- 
ber stood  is  not  in  the  possession  of  the  defendant,  and 
the  plaintiff  is  entitled  to  damages  for  the  violation  of  his 
right  of  property ;  though  he  has  no  right  to  the  land.* 
Again :  The  defendant,  without  right  or  authority,  enters 

1  A  wrongful  use  of  the  highway,  which  does  not  result  in  special 
damage  to  any  one  of  the  public,  cannot  be  redressed  by  the  adjoin- 
ing owner  in  his  own  right.  The  remedy  lies  with  the  public.  See* 
Cli.  10,  Nuisance.  2  Robbins  v.  Borman,  1  Pick.  122. 

2  Adams  v.  Emerson,  6  Pick.  57. 

^  *  Buck  V.  Aikin,  1  Wend.  406.  The  plaintiff  became  possessed 
of  the  trees  as  soon  as  they  were  cut  by  the  defendant,  according  to 
the  rule  stated,  ante,  p.  100. 


§  2.]       TRESPASSES  UPON  PROPERTY.       169 

upon  an  open  woodland  adjoining  enclosed  land  in  the 
wrongful  possession  of  the  plaintiff.  The  act  is  no  breach 
of  dut}'  to  the  plaintiff.^ 

One  of  several  cotenants,  whether  of  real  or  of  personal 
property,  cannot  maintain  an  action  for  acts  relating  to  the 
common  property,  not  amounting  to  an  ouster ;  because 
all  the  cotenants  have  equal  rights  of  possession  and  prop- 
erty. F'or  example  :  The  defendant,  cotenant  of  land  with 
the  plaintiff,  cuts  and  carries  away  therefrom  timber,  at 
the  same  time  denying  to  the  plaintiff  any  right  in  the 
premises,  but  not  withholding  possession  from  him.  The 
defendant  has  violated  no  duty  to  the  plaintiff.- 

If,  in  the  case  of  real  estate,  the  act  of  the  defendant, 
however,  amount  to  an  ouster  of  the  plaintiff  from  the  posses- 
sion of  the  common  propert}',  the  act  is  a  trespass,  and  ^he 
defendant  is  Uable  ;  provided,  at  least,  an  action  of  eject- 
ment would  at  common  law  be  maintainable.  For  exam- 
ple :  The  defendant,  being  cotenant  with  the  plaintiff  of 
a  certain  room  in  a  coffee-house,  expels  therefrom  the 
plaintiff's  servant,  in  derogation  of  the  plaintiff's  right 
of  occupation.  The  defendant  is  liable  to  the  plaintiff  in 
damages  ;  since  an  action  of  ejectment  for  restoration  to 
possession  would  lie.^ 

AVhatever  amounts  to,  or  if  persisted  in  might  amount 
to,  an  effectual  privation  of  the  associate  tenant  of  parti- 
cipation in  the  possession  of  the  common  property  amounts 
to  an  ouster,  even  though  there  be  no  actual  expulsion  or 
withholding  of  possession  from  him.     For  example :  The 

1  It  is  diflBcult  to  find  judicial  authority  for  tliis  example,  because, 
perhaps,  of  its  simplicity.     Its  correctness  is  clear. 
^  2  Filbert  V.  Hoff,  42  Penn.  St.  97. 

8  Murray  v.  Hall,  7  Com.  B.  441  ;  s.  c.  Bigelow's  L.  C.  Torts,  343. 
Ejectment  was  originally  an  action  of  trespass,  and  is  considered 
still  to  include  trespass.  Hence,  if  that  form  of  remedy  may  be  used, 
trespass  lies.  This  is  the  reasoning ;  but  it  is  difficult  to  see  how 
ejectment  could  be  allowed  a  cotenant. 


170         DUTIES  OF  INDIVIDUALS  INTEU  SE.    [Chap.  VIIL 

defendant,  cotenant  witli  the  plaintiff  of  a  certain  close, 
digs  up  the  turf  and  carries  it  away,  without  the  plaintiff's 
consent.  This  is  an  ouster,  for  which  the  defendant  is 
liable  to  the  plaintiff  in  damages ;  since,  if  the  cotenant 
were  permitted  to  take  the  turf,  he  would  be  entitled  to 
dig  away  the  soil  below  the  turf,  and  might  thus  effectually 
deprive  his  fellow  of  his  right  to  the  possession.^ 

If  the  criterion  of  this  remedy  between  cotenants  for  au 
ouster  be  the  question  whether  an  ejectment  would  be  main- 
tainable, it  follows  that  an  action  for  trespass  in  respect 
of  goods  held  in  common  cannot  be  maintained  by  one 
cotenant  against  another ;  for  an  action  of  ejectment  lies 
for  the  recovery  of  land  only.  Nor,  indeed,  is  there  any 
authority  in  opposition  to  this  deduction  ;  the  question  of 
the  right  of  action  having,  so  far  as  the  reported  authori- 
ties go,  alwa^'s  arisen  in  regard  to  common  rights  iu  realty."'^ 
Some  decisions  have  denied  the  remedy  even  when  resorted 
to  in  cases  of  real  property.* 

In  respect  of  personal  property,  however,  it  will  be  seen 
in  the  next  chapter  that  an  action  for  the  conversion  of 
the  common  chattel  can  be  maintained  in  certain  cases. 
The  difBculty  thus  relates  more  to  the  technical  fonn 
of  action  than  to  the  substance  of  things.  It  may  there- 
fore be  laid  down,  that  for  one  tenant  in  common  of  per- 
sonal property  to  withhold  possession  of  the  chattel  from 
his  associate,  or  to  expel   him  from  participation  in  the 

1  Wilkinson  v.  Haygarth,  12  Q.  B.  837.  The  defendant  would  not 
have  been  liable  to  an  action  for  trespass  for  taking  and  carrying  away 
the  growing  grass  or  crops.  lb.  The  Statute  of  -4  Anne,  c.  1(3,  §  27,  in 
force  in  this  country  where  not  superseded  by  other  legislation,  gives 
a  remedy  by  account  where  the  defendant  has  taken  all,  or  more 
than  his  share,  of  the  profits.  See  Silloway  v.  Brown,  12  Allen, 
80,  38. 

2  See  the  cases  cited  in  Bigelow's  L.  C.  Torts,  pp.  358-360. 

8  "Wait  V.  Richardson,  33  Vt.  100.  See  also  Bennet  v.  Bollock, 
35  Peun.  St.  26i,  3G7. 


§  2.]       TRESPASSES  UrON  TROrERTY.       171 

possession,  or  to  appropriate  to  himself  more  than  his 
share  of  the  profits  arising  from  tlie  property,  is  a 
breach  of  legal  duty  to  the  latter,  for  which  the  law  gives 
redress.^ 

It  has  been  observed  that,  in  order  to  maintain  an  action 
for  trespass  to  land,  possession  of  the  land  at  the  time  of 
the  wrongful  entry  is  necessary.  But  the  law  does  not 
allow  a  person  who  has  wrongfully  entered,  to  take  and 
enjoy  the  profits  of  the  close,  or  to  commit  depredations 
upon  the  premises  during  his  occupancy,  without  a  reckon- 
ing. If  the  owner  or  i)erson  entitled  to  the  possession  sub- 
sequently obtain  possession  of  the  close,  the  law  treats  him, 
by  the  fiction  of  relation,  as  having  been  in  possession  dur- 
ing all  the  time  that  has  elapsed  since  he  was  ejected  from 
the  premises. 

The  consequence  is,  that  upon  his  re-entry  he  becomes 
entitled  to  sue  for  the  damage  which  he  has  sustained  at 
the  hands  of  the  party  who  has  usurped  the  possession. 
The  remedy  thus  allowed  is  called  an  action  for  mesne 
profits  ;  that  is,  for  the  value  of  the  premises  during  the 
period  in  which  the  plaintiff  has  been  kept  out  of  posses- 
sion by  the  defendant.  The  plaintiff  is  also  entitled  to 
recover  for  all  wrongful  entries  npon  and  damages  done  to 
his  property  in  the  mean  time.^  For  example  :  The  defend- 
ant enters  upon  premises  of  the  plaintiff,  of  which  the  plain- 
tiff has  been  disseised,  and  removes  buildings  therefrom. 
The  plaintiff  subsequently  re-enters,  and  then  brings  suit 

1  The  difficulty  in  the  way  of  the  common-law  action  of  trespass 
is  that  the  defendant,  tenant  in  conmion,  had  a  right  of  possession, 
and  that  is  inconsistent  with  that  form  of  action.  But  in  an  action 
of  trover  for  the  conversion  of  a  chattel,  it  matters  not  that  the 
defendant  had  a  right  of  possession.  The  gist  of  such  an  action  is 
not  (as  it  is  in  trespass)  the  wrongful  possession  of  the  defendant, 
but  the  conversion  of  the  plaintiii's  right. 

2  Liford's  Case,  11  Coke,  46,  51;  Morgan  i^.  Varick,  8  Wend 
687  ;VDewey  r.  Osbom,  4  Cowen,  329,  339. 


172  DUTIES  OF  INDIVIDUALS  INTER  SE.    [Chap.  VIIL 

for  damages   done   to  his  property.      He  is  entitled  to 
recover.^ 

There  is  much  conflict  as  to  the  existence  in  the  dis- 
seisee of  a  right  of  action  for  mesne  profits  against  one 
who,  before  the  plaintiff's  entry,  had  succeeded  the  dis- 
seisor b}'  descent  or  purchase  ;  that  is,  in  the  language  of 
the  law,  against  a  stranger.  On  the  one  hand,  it  is  said 
that  to  take  a  supposed  title  from  another  cannot  be  a  tres- 
pass, and  therefore  mesne  profits  arising  during  the  latter's 
occupation  cannot  be  recovered  of  him.^  On  the  other 
hand,  the  apparent  injustice  of  this  doctrine,  towards  the 
owner,  has  been  m'ged,  and  the  contrary  conclusion 
reached.'  Between  the  extremes  of  these  rulings,  how- 
ever, there  is  an  important  class  of  cases,  as  to  which  there 
is  little  conflict.  These  are  cases  in  which  the  defendant 
claims  under  one  who  has  been  let  into  possession  under 
legal  process.  In  cases  of  this  kind,  it  has  been  held  that 
the  defendant  is  not  liable  for  mesne  profits  ;  and  it  seems 
just,  as  well  as  conformable  to  the  doctrine  of  trespass  upon 
lands,  that  one  who  has  obtained  possession  under  the  dis- 
seisor by  process  of  law  should  be  presumed  by  third  per- 
sons to  be  rightfully  possessed  while  the  process  (and  the 
possession  b}'  virtue  of  it)  continues  in  force.  For  example  : 
The  defendant  enters  and  occupies  land  of  the  plaintiff 
under  a  writ  of  possession,  executed  against  one  who  had 
wrongfully  disseised  the  plaintiff".  The  writ  is  afterwards  set 
aside,  and  the  plaintiff"  resumes  possession.  The  defend- 
ant is  not  liable  for  the  profits  consumed  during  his  occu- 

1  Dewey  v.  Osborn,  supra.  This  case  shows  also  that  the  party 
on  re-entry  is  in  a  position  to  sue  for  every  entry  upon  his  lands 
made  without  authority. 

2  Liford's  Case,  11  Coke,  46,  51;  Barnett  v.  Guildford,  11  Ex.  19, 
30;  Case  v.  De  Goes,  3  Caines,  201,  203;  Van  Brunt  v.  Schenck,  10 
Johns.  377,  385 ;  Dewey  v.  Osborn,  4  Cowen,  329,  338. 

*  Morgan  v.  Varick,  8  Wend.  687. 


§  2.]       TRESPASSES  UPON  PROPERTY.       173 

pancy.^  Again :  The  defendant  enters  and  takes  posses- 
sion of  the  plaintiff's  hind  under  a  license  from  one  who 
has  been  put  into  possession  against  a  wrong-doer  under  a 
writ  of  restitution,  which  writ  is  afterwards  quashed.  The 
defendant  is  not  liable  for  the  mesne  profits.^ 

It  would  seem  also  that  purchasers,  third  persons,  under 
judicial  sales,  would  stand  in  a  like  situation  ;  for,  though 
the}^  do  not  acquire  title  from  parties  let  into  possession 
under  legal  process,  they  take  through  the  sheriff,  who  may 
reasonably  be  presumed  to  have  authorit}'  to  sell.  And 
there  is  judicial  authority  for  this  view.^  It  would  (prob- 
abl}")  be  otherwise  if  the  purchaser  should  be  the  person 
who  had  instituted  the  invalid  proceedings  under  which  he 
was  let  into  possession.* 

The  non-habiUt}^  of  the  purchaser  or  heir  extends,  how- 
ever, only  to  profits  consumed  b}'  him.  If  such  person 
sow  the  land,  or  cut  down  trees,  or  grass,  or  crops,  and 
sever  and  carr}'  them  awa}^,  or  sell  them  to  another,  the 
disseisee,  after  regress,  may  take  the  things  severed  wher- 
ever he  can  find  them,  or,  if  he  cannot  find  them,  recover 
their  value  of  the  person  lately  in  possession.  The  regress 
of  the  disseisee  has  relation  to  the  beginning  of  the  last 
occupation,  and  the  title  to  the  things  severed  is  therefore 
in  him,  which  the  carrying  away  and  disposing  of  do  not 
divest.^ 

When  the  owner  regained  possession  through  an  action 
at  law,  it  was  formerl}'  necessary  to  bring  a  separate  action 
for  the  profits  of  the  wrongful  occupation,  since  damages 
were  not  recoverable  in  an  action  to  recover  possession  of 

""  1  Bacon  v.  Sheppard,  6  Halst.  197. 

2  Case  V.  T>e  Goes,  3  Gaines,  261. 
~~  8  Dabney  v.  Manning,  3  Ohio,  321. 
^  *  See,  further,  Bigelow's  L.  G.  Torts,  362-366. 

^  See  Liford's  Gase,  supra.  But,  of  course,  if  the  owner  take  away 
the  things  severed,  the  defendant  can  recoup  their  value  in  trespass 
for  the  mesne  profits.    lb. 


174  DUTIES  OF  INDIVIDUALS  INTER  SE.   [Chap.  Vin. 

the  land.  More  recently,  however,  statutes  have  been 
quite  generall}'  passed  authorizing  and  requiring  the  plain- 
tiff to  claim  his  damages  in  the  proceeding  for  the  land, 
and  baiTing  any  other  claim  therefor.^  But  these  statutes 
do  not  affect  the  part^-'s  right  of  action  when  he  has  ac- 
quired possession  again  without  process  of  law ;  "^  though 
it  is  still  necessary  for  the  disseisee  to  have  regained  pos- 
session before  he  brings  his  suit.^ 

§  3.  Of  what  constitutes  a  Trespass  to  Property. 

The  gist  of  an  action  for  trespass  to  land  consists  in  the 
wrongful  entry  upon  it.  And  an}'  entr}'  upon  land  in  the 
rightful  possession  of  another,  without  license  or  permis- 
sion, is  a  breach  of  dut}'  to  the  possessor ;  and  this,  too, 
though  the  land  be  unenclosed.  It  follows  that  an  action 
is  maintainable  for  such  an  entrj-,  though  it  be  attended 
with  no  damage  to  the  possessor.  For  example  :  The  de- 
fendant without  permission  enters  upon  unenclosed  land  in 
the  lawful  possession  of  the  plaintiff,  with  a  surve3'or  and 
chain  carriers,  and  actually  surveys  part  of  it,  but  without 
doing  any  damage.  The  act  is  a  breach  of  duty  to  the 
plaintiff,  and  the  defendant  is  liable  at  least  to  nominal 
damages.^ 

The  same  is  true  though  the  close  entered  be  a  private 
way,  over  which  the  plaintiff  has  a  right  of  passage,  and 
the  defendant  has  not ;  though  the  phuntiff  has  no  right  to 
the  soil.^    For  example  :  The  defendant  deposits  articles  at 

»  Kiiymond  v.  Andrews,  6  Cush.  265;  Leland  v.  Tousey,  6  Hill,  328. 

2  Leland  v.  Tousey,  supra. 

8  lie  can  maintain  an  action  of  trespass  for  the  original  ouster 
before  a  re-entry,  since  he  was  in  possession  when  first  ousted.  Case 
V.  Sheplicrd,  2  Johns.  Cas.  27. 

*  Doufilierty  v.  Stcpp,  1  Dev.  &  B.  371.  Should  the  defendant 
repeat  the  offence,  he  may  be  made  to  smart  for  it  in  damages. 
Williams  v.  Esling,  4  Barr,  48G. 

^  The  action  is  case,  not  trespass. 


§3.]       TRESPASSES  UPON  PROPERTY.        175 

various  times  in  a  passage-way  to  the  use  of  whicli  he  has 
no  right,  and  tlie  pkiintiff  has  a  right,  tliough  the  ownership 
of  the  soil  is  in  another.  The  defendant  is  hable  ;  though  he 
removes  the  articles  in  every  instance  before  the  plaintiff 
desires  to  pass  out,  and  never  in  fact  hinders  the  plaintiff 
in  entering  or  in  going  out  of  the  passage.^ 

A  close  is  deemed  to  have  been  broken  and  entered  even 
though  the  act  was  not  in  fact  committed  within  it,  but 
onl}"  against  its  bounds.  To  bring  any  thing  against  such 
bounds  without  permission  is  a  trespass.  For  example  : 
The  defendant,  without  permission,  drives  nails  into  the 
outer  wall  of  the  plaintiff's  building,  which  stands  upon  the 
line  of  the  plaintiff's  premises.  This  is  a  breach  of  duty, 
for  which  the  defendant  is  liable  in  damages. "-^  Again  :  The 
defendant  heaps  up  dirt  close  to  the  plaintiff's  boundar}- 
wall,  and  the  dirt,  of  itself,  falls  against  the  wall.  This  is 
a  trespass.^ 

An  entiy  upon  land,  or  a  taking  of  goods,  is  justifiable 
when  effected  (1)  either  by  consent  of  the  party  or  (2)  by 
license  of  the  law.  The  term  ' '  consent  of  the  party,"  as 
here  used,  has  reference  to  an  express  consent,  either  in 
answer  to  a  request  for  permission,  or  by  specific  iuAdta- 
tion  or  request  by  the  possessor.  Cases  of  this  kind 
sufficiently  explain  themselves,  and  need  not  be  dwelt 
upon.  The  term  "license  of  the  law,"  as  here  used,  in- 
cludes all  other  cases  in  which  the  entry  or  taking  posses- 
sion was  lawful. 

This  second  class  needs  some  explanation.  The  law 
licenses  an  entry  upon  the  land  of  another,  or  the  taking 
possession  of  another's  goods,  in  at  least  ten  classes  of 
cases.  The  first  ii\  importance  of  these  classes  is  where 
the  law  has  commanded  the  entr}'  or  the  taking  posses- 

'  Williams  v.  Esling,  4  Barr,  486;  8.  c.  Bigelow's  L.  C.  Torts,  371. 

2  Lawi'ence  i'.  Ober,  1  Stark.  22. 

'  Gregory  i'.  Piper,  9  Barn.  &  C.  691. 


176         DUTIES  or  INDIVIDUALS  INTER  SE.   [Chap.  VIIL 

sion  ;  the  entry  and  levy  of  a  sheriff  by  virtue  of  a  valid 
precept  being  a  good  example. 

The  second  of  these  classes  is  where  an  entry  is  made 
into  an  inn,  or  into  a  shop,  store,  or  warehouse  on  busi- 
ness, or  into  the  coach  of  a  common  carrier  of  passengers. 
Such  an  entry  is  lawful  if  the  party  be  in  a  fit  condition  to 
be  received. 

The  third  class  of  cases  is  where  the  party  in  possession 
of  land  has  bound  himself  by  debt  to  another,  without 
any  stipulation  as  to  the  place  of  paj-ment.  In  such  a 
case,  the  creditor  is  allowed  by  law  to  enter  his  premises 
for  the  purpose  of  demanding  payment.^ 

The  fourth  of  these  classes  is  where  the  part}'  in  posses- 
sion has  assumed  a  relation  of  trust  over  the  real  property 
of  another.  In  such  a  case,  the  law  allows  the  latter  to 
make  an  entry  upon  the  land  for  the  purpose  of  ascertain- 
ing whether  his  interests  are  properly  regarded  by  the 
possessor.  For  example :  The  defendant  leases  land  to 
the  plaintiff,  and  subsequently  enters  to  see  if  the  latter 
has  committed  waste.  This  is  no  breach  of  duty  to  the 
plaintiff.^  Again :  The  defendant  leases  laud  to  the 
plaintiff,  reserving  the  right  to  the  use  of  certain  trees. 
He  afterwards  enters  to  point  out  the  trees  intended. 
This  is  not  a  breach  of  dut}'.^ 

The  fifth  class  is  where  goods  have  been  sold  which  lie 
upon  the  premises  of  the  vendor.  In  the  absence  of  any 
special  agreement  or  general  custom  concerning  the  dehv- 
ery  of  the  goods,  the  buyer  may  go  upon  the  premises  of 
the  seller  and  take  them.*  A  Ucense  is  implied  in  this 
case  because  it  is  necessary  to  carry  the  sale  into  effect, 
and  it  cannot  be  revoked.  This,  however,  would  not  be 
true  of  the  case  of  a  sale  of  things  (such  as  trees)  that 
must  be  severed  from  the  realty  to  convert  them  into  per- 

1  3  Black.  Com.  212.  3  Ncwkirk  v.  Sabler,  9  Barb.  652. 

'^  3  Black.  Com.  212.  *  McLeod  v.  Jones,  105  Mass.  403. 


§  3.]       TRESPASSES  UPON  PEOPERTY.       177 

sonalty.  The  implied  license  to  enter  and  sever  in  this 
case,  if  there  be  an}',  may,  it  is  said,  be  revoked  before 
the  entr}-.-' 

The  sixth  class  is  where  the  possessor  of  land  has 
wrongfully  burdened  another  with  the  possession  of  his 
(the  former's)  goods.  In  such  a  case,  the  goods  ma}-  be 
taken  and  put  upon  the  owner's  premises  ;  and  neither  the 
taking  of  the  goods,  nor  the  entr}-  upon  the  owner's  prem- 
ises is  unlawful.  For  example  :  The  defendant  takes  an 
iron  bar  and  sledge  belonging  to  the  plaintiff,  and  puts 
them  upon  the  plaintiff's  land ;  the  plaintiff  having  first 
brought  them  upon  the  defendant's  premises,  and  then, 
without  permission,  having  left  them  there.  The  entry  is 
lawful.^ 

The  seventh  class  is  where  a  man's  goods,  without  his 
act,  have  got  upon  the  land  of  another.  In  such  a  case, 
the  owner  of  the  goods  may  enter  and  take  them.  For 
example :  The  defendant  enters  upon  the  plaintiff's  laud 
to  get  apples,  which,  by  the  action  of  the  wind,  have 
fallen  from  the  trees  into  the  latter's  close.  The  defendant 
is  not  hable.*  Again :  The  defendant  enters  upon  the 
plaintiff's  land  to  get  his  own  goods  which  the  plaintiff 
has  wrongfully  taken  and  put  there.  This  is  lawful ;  * 
though  it  would  have  been  otherwise  had  the  plaintifi' 
come  properly  into  possession  of  the  goods. ^ 

The  eighth  class  is  where  a  person  enters  the  premises 
of  another  to  succor  his  beast  in  danger  of  perishing. 
Such  an  act  is  not  a  trespass ;  but  it  is  said  that  the  case 
would  be  different  if  the  entry  was  made  to  prevent  a 
person   from   stealing  the   owner's   beast,  or  to   prevent 

1  McLeod  V.  Jones,  supra. 

2  Cole  V.  Maundy,  Viner's  Abr.  Trespass,  516. 

*  Millen  v.  Fawdry,  Latch,  120.  It  would  be  otherwise  if  the 
defendant  should  shake  the  trees.     Bacon's  Abr.  Trespass,  F. 

*  Viner's  Abr.  Trespass,  1  (A) ;  Bigelow's  L.  C.  Torts,  382. 
6  Bigelow's  L.  C.  Torts,  381.  "^ 

12 


178         DUTIES  OF  INDIVIDUALS  INTER  SE.    [Chap.  VIIL 

cattle  from  consuming  his  corn.^  The  distinction  made 
between  the  cases  is  that  in  the  former  case  the  loss  of  the 
animal  would  be  irremediable,  that  is,  that  particular 
animal  (which  might  be  very  valuable)  could  not  be 
replaced  ;  while  in  the  latter  case,  the  animal  might  be 
recovered  from  the  thief,  or  the  corn  replaced  by  purchase 
or  by  a  new  crop ;  all  corn  being  substantially'  alike. 
The  distinction,  however,  appears  mediaeval.       ,. 

The  ninth  class  of  cases  is  where  the  rdefendantj  brings 
or  suffers  a  nuisance  upon  his  premises,  to  the  peculiar 
injur}'  of  his  neighbor.  In  a  case  like  this,  the  latter  may, 
at  common  law,  enter  and  abate  the  nuisance.  For  exam- 
ple :  The  defendant  enters  upon  the  plaintiff's  premises, 
and  removes  the  eaves  of  a  shed,  which  overhang  the  de- 
fendant's land  and  in  rainy  weather  drip  upon  his  premises. 
This  is  no  breach  of  duty  to  the  plaintiff.'^ 

The  tenth  class  of  cases  is  where  an  entry  has  been 
made  upon  land  of  another  bj'  reason  of  necessit}',  without 
the  fault  of  the  person  entering.  Such  an  entrj-  is  justifi- 
able. For  example  :  The  defendant  runs  into  the  plain- 
tiff's premises  to  escape  a  savage  animal,  or  the  assault 
of  a  man  in  pursuit  of  him.  The  defendant  is  not  hable.^ 
Again :  The  defendant  enters  upon  the  plaintiff's  premises 
to  pass  by  a  portion  of  the  highway  which  at  this  point  is 
wholly  flooded,  but  without  the  act  of  the  defendant. 
The  entry  is  justifiable.'* 

In  all  of  the  foregoing  cases,  the  entry  must  have  been 
peaceabl3'  made,  and  without  doing  unnecessarj'  damage, 
and  any  damage  done  should  (probably)  be  paid  for  or 
repaired.* 

1  Bacon,  ut  supra. 

2  Penruddock's  Case,  5  Coke,  100  b;  Bigelow's  L.  C.  Torts,  383, 
where  various  distinctions  as  to  such  cases  are  mentioned. 

8  Year  Book,  37  Hen.  6,  p.  37,  pi.  26. 

*  Ahsor  V.  French,  2  Show.  28. 

«  See  Chambers  v.  Bedell,  2  Watts  &  S.  225. 


§  3]       TRESPASSES  UPON  PROPERTY.       179 

The  effect  of  purchasing  and  taking  propert}'  from  one 
who  had  no  title  or  right  to  sell  has  been  a  subject  of  con- 
flict of  authority.  The  act  is  treated  b}-  some  of  the 
courts  as  a  trespass  to  the  owner,  rendering  the  purchaser 
liable  to  an  action  without  an^-  demand  for  the  goods. ^ 
B}'  other  courts,  it  is  held  that  the  act  cannot  be  a  tres- 
pass before  a  refusal  to  surrender  the  propert}'  on  demand 
made  ;  ^  though  it  is  said  by  the  same  courts  that  no  demand 
would  be  necessarj-  if  the  purchaser  took  the  goods  away 
from  the  seller  without  a  delivery  to  him.^ 

It  has  ah'eady  been  seen  that  a  trespass  to  property 
consists  in  an  unlawful  entry  of  land  or  taking  of  goods, 
and  a  trespass  hy  imprisonment,  in  an  unlawful  arrest. 
There  is  one  case,  however,  in  which,  by  reason  of  subse- 
quent acts,  a  person  may  be  treated  as  a  trespasser  not- 
withstanding the  lawfulness  of  the  entry  or  taking  posses- 
sion, or  of  the  arrest ;  the  result  thus  being  to  deprive  the 
party  of  the  justification  of  the  lawfulness  of  the  original 
act,  and,  by  a  fiction  of  law,  to  make  him  a  trespasser  ah 
initio.  According  to  this  fiction,  one  who  has  taken  pos- 
session of  goods,  or  entered  upon  land  by  virtue  of  a  license 
of  the  law,  becomes  a  trespasser  ah  initio  (notwithstanding 
the  lawfulness  of  the  lev}'  or  entrj-) ,  if  he  afterwards,  while 
acting  under  the  hcense,  commit  an  act  which  in  itself 
amounts  to  a  technical  trespass.  For  example :  The  de- 
fendant enters  upon  the  plaintiff's  premises  bj-  virtue  of  a 
valid  writ,  commanding  him  to  levy  upon  the  plaintifl"s 
goods.  He  then  puts  a  keeper,  who  is  intoxicated,  upon 
the  latter's  premises  to  take  care  of  the  goods,  against  the 
plaintifl["s  remonstrance.    The  bringing  such  a  person  upon 

1  Stanley  r.  Gaylord,  1  Gush.  536;  Galvin  r.  Bacon,  2  Fairf.  28; 
Hyde  v.  Noble,  13  N.  H.  494. 

2  Marshall  v.  Davis,  1  Wend.  109;  Nash  v.  Mosher,  19  Wend. 
431 ;  Pierce  v.  Van  Dyke,  6  HUl,  613. 

*  Nash  V.  Mosher,  supra. 


180         DUTIES  OF  INDIVIDUALS  INTER  SE.    [Chap.  VBL 

the  premises  is  a  trespass,  and  the  defendant  is  a  tres- 
passser  from  the  beginning.^ 

But,  in  order  to  become  a  trespasser  ah  initio,  the  sub- 
sequent act  must,  it  has  been  held,  be  a  technical  tres- 
pass :  if  it  be  not,  the  party  is  not  to  be  treated  as  a 
trespasser  from  the  beginning,  though  the  act  committed 
be  wrongful  and  subject  him  to  liability.  For  example : 
The  defendant,  an  officer,  enters  upon  the  plaintiff's  premi- 
ses by  virtue  of  a  lawful  writ,  to  make  a  \&wy  for  debt. 
While  there,  in  the  course  of  his  business  as  an  officer,  he 
wrongfull}'  extorts  money  from  the  plaintiff.  He  is  not  a 
trespasser  from  the  beginning  of  his  entry,  though  the 
extortion  was  a  breach  of  duty  for  which  he  would  be  lia- 
ble in  damages  ;  extortion  not  being  a  trespass.^ 

These  examples,  on  examination,  will  show  the  impor- 
tance of  the  doctrine  of  trespass  ab  initio.  If  the  person's 
conduct  make  him  obnoxious  to  this  doctrine,  it  follows 
(probably)  that  all  acts  done,  such  as,  in  the  case  of  an 
officer,  levies  made,  intermediate  the  entrj'  and  the  tres- 
pass, are  void ;  since,  his  entry  being  a  trespass,  he  could 
not,  according  to  general  principles  of  law,  thereafter  do 
an  act  against  the  will  of  the  occupant  which  would  be 
legal. ^    Besides,  he  would  be  liable  for  the  entry  as  well  as 

'    1  Malcolm  v.  Spoor,  12  Met.  279 ;  s.  c.  Bigelow's  L.  C.  Torts,  378. 

2  Sliorland  v.  Govett,  5  Barn.  &  C.  485;  Adams  v.  Rivers,  11 
Barb.  390.    But  compare  Holley  v.  Mix,  3  Wend.  350. 

3  Compare  Ilsley  v.  Nichols,  12  Pick.  270;  Bigelow,  Fraud,  166. 
Ilsley  V.  Nichols  decides  that  a  levy  made  by  breaking  open  the  outer 
door  is  invalid,  and  the  officer  is  liable  for  the  value  of  the  goods 
taken  as  well  as  for  the  unlawful  entry.  The  same  result  should  in 
principle  follow  if,  by  an  act  subsequent  to  the  entry,  he  become  a 
trespasser  from  the  beginning.  The  doctrine  of  trespass  ab  Initio  is 
put  upon  the  ground  that  the  subsequent  act  indicates  a  prior  pur- 
pose to  commit  a  trespass.  Six  Carpenters'  Case,  8  Coke,  146;  L.  C. 
Torts,  386.  If  a  sheriff  should  levy  upon  a  horse,  and  then  (the 
horse  being  well)  intentionally  poison  him,  it  would  be  a  fair  infer- 
ence that  he  intended  the  trespass  from  the  beginning. 


§  3.]       TRESPASSES  UPON  PROPERTY.       181 

the  after-acts.  The  doctrine  does  not,  therefore,  concern 
the  form  of  remedy  alone. 

This  doctrine  of  trespass  ah  initio  apphes,  however,  only 
against  persons  who  have  entered  or  taken  goods  b}'  license 
of  law.  A  person  cannot  treat  as  a  trespasser  from  the 
beginning  one  to  whom  he  has  himself  given  permission  to 
enter  or  take  his  goods,  whatever  be  the  nature  of  his  sub- 
sequent acts.  For  example :  The  defendant,  by  permis- 
sion of  the  plaintiff's  wife,  enters  the  plaintift"s  house  in 
his  absence,  and  while  there  wrongfully  gets  possession  of 
papers,  and  carries  them  awa}'.  This  does  not  make  him 
a  trespasser  ah  initio.^ 

As  the  subsequent  act  must  amount  to  a  trespass,  it 
becomes  necessarj'  to  ascertain  somewhat  precisely*  the 
technical  signification  of  the  term.  It  is  difficult  to  define 
a  trespass,  but  the  following  will  serve  to  indicate  the 
proper  meaning  of  the  term :  (1)  Any  wrongful  con- 
tact with  the  plaintifl"s  person  or  property  is  a  trespass. 
(2)  Any  wrongful  act  committed  directly'  with  force  is  a 
trespass,  though  no  physical  contact  with  the  person  of  the 
plaintiff  or  with  his  property  be  produced  ;  as  in  the  case 
of  an  imprisonment  without  contact,  or  the  fivhig  a  gun 
under  the  plaintiff's  window,  to  the  alarm  of  the  inmates 
of  his  house.  In  cases  like  these,  force  is  said  to  be  im- 
plied. Upon  the  same  ground,  the  debauching  of  the 
plaintiff's  wife,  daughter,  or  servant,  might  be  considered 
as  a  U-espass,  and  the  act  has  sometimes  been  so  treated 
by  the  courts :  ^  the  consent  given  was  not  the  plaintiff's 
consent.     But  the  later  view  is  diflerent.^ 

1  Allen  V.  Crofoot,  5  Wend.  556.  It  is  not  clear  that  the  subse- 
quent act  in  this  case  was  a  trespass ;  but,  supposing  it  to  have  been 
such,  the  defendant  still  would  not  have  been  a  trespasser  from  the 
beginning.  ^  Six  Carpenters'  Case,  8  Coke,  146. 

2  Tullidge  V.  Wade,  3  Wils.  18 ;  1  Chitty,  Pleading,  126,  133. 

^  Macfadyen  i».  Olivant,  6  East,  387.  Chitty,  however,  prefers 
the  old  doctrine.     1  Pleadhig,  133. 


182         DUTIES  OF  INDIVIDUALS  INTER  SE.   [Chaf.  Vm. 

On  the  other  hand,  (1)  a  mere  non-feasance  (that  is, 
a  pure  omission)  cannot  be  a  trespass  ;  ^  (2)  nor  can  there 
be  a  ti'espass  where  the  matter  affected  was  not  tangible, 
and  hence  could  not  be  unmediately  injured  by  force,  as 

in  the  case  of  an  injury  to  reputation  or  health;   (3)  nor 

/i<  Wr  can  there  be  a  trespass  where  the  right  affected  is  incor- 
f/  //y  poreal,  as  a  right  of  common  or  wa}' ;  (4)  nor  where  the 
^ju  '>irji  1  interest  injured  exists  in  reversion  or  remainder,  and  is  not 
/^  'ir'  in  possession;  (5)  nor  where  there  is  no  right  of  action 
immediate  upon  the  act  in  question.'- 

Lastlj',  to  constitute  a  trespass  to  propert}',  the  thing 
I  affected  must,  though  tangible,  be  capable  of  ownership  as 
'  property.  Wild  animals,  untamed,  are  deemed  property 
only  while  in  the  actual  or  constructive  possession  of  the 
keeper :  upon  effectual  and  final  escape,  they  cease  to  be 
property,  and  may  be  killed,  or  taken  and  retained  by  any 
one,  at  least  if  he  is  not  aware  of  the  prior  ownership. 
And  a  wild,  savage  animal  straying  at  large  ma}'  be  killed, 
though  the  owner  be  known  to  be  in  pursuit.'^ 

A  man  may  have  property  in  a  dog,  though  the  animal 
may  not  have  any  ascertainable  pecuniary  value. ^  And 
the  same  is  doubtless  true  of  other  animals  kept  as  pets, 
and  of  wild  animals  which  have  been  tamed.'  It  follows 
that  no  one  has  an  absolute  right  to  take  and  keep  them 
when  found  straj-ing,®  or  to  kill  them.'^  But  while  there  is 
no  absolute  right  to  kill  such  animals,  there  are  circum- 
stances when  the  law  will  justify  such  an  act.  A  man  may 
protect  himself  or  another  from  the  attack  of  a  beast,  and 
he  may  kill  a  dog  at  large  doing  or  attempting  to  do 

^  1  Six  Carpenters'  Case,  8  Coke,  146. 

2  See  1  Chitty,  Pleading,  IGG. 

8  2  Kent,  Com.  348,  34!). 

*  Dodson  V.  Meek,  4  Dev.  &  B.  146;  Wlieatly  v.  Harris,  4  Sneed, 
468. 
"    *  AnDory  v.  Flyn,  10  Johns.  102.  6  i^. 

'  Dodson  V.  Meek,  and  Whcatly  v.  Harris,  supra. 


§  3.]       TRESPASSES  UPON  PROPERTY.       183 

mischief,  as  in  biting  or  wonying  sheep  or  other  domestic 
animals.^  A  ferocious,  biting  dog,  suffered  to  run  at  large 
without  a  muzzle,  is  a  common  nuisance,  and  an}'  one  may 
kill  it,  whether  at  the  time  it  was  doing  mischief  or  not,  or 
whether  the  owner  knew  of  the  nature  of  the  dog  or  not.'^ 

A  man  ma}',  however,  keep  a  ferocious  dog  as  a  watch 
over  his  premises,  if  properly  secured ;  and  while  it  is  in 
such  a  situation,  and  has  made  no  attack  upon  any  one,  it 
is  not  lawful  to  kill  it.' 

Nor  will  the  mere  fact  that  another's  domestic  animals 
are  found  trespassing  upon  a  man's  premises  justify  him  in 
killing  them,*  or  in  detaining  them  upon  a  claim  for  any 
thing  be3'ond  reimbursement  for  necessary-  expenses,  and 
paj-ment  of  the  actual  damage  done.  K  detained,  they 
must  be  properly  treated,  and  not  injured.'^  If  the  owner 
of  the  premises  di'ive  them  out,  he  must  do  so  without  un- 
necessarj^  violence ;  otherwise  he  wiU  be  liable.  For  ex- 
ample :  The  defendant,  finding  the  plaintiff's  horse  to  have 
strayed  upon  his  premises,  sets  a  ferocious  dog  upon  it,  and 
seriously  injures  it.  This  is  a  violation  of  duty  to  the 
plaintiff,  and  the  defendant  is  liable  for  the  damage.^ 

"^  1  Brown  r.  Hoburgcr,  52  Barb.  15;  Iving  v.  Kline,  6  Barr,  318; 
Woolf  V.  Chalker,  31  Conn.  121. 

*^  -  Putnam  v.  Payne,  13  Johns.  312;  Maxwell  v.  Palmerston,  21 
Wend.  407 ;  Brown  v.  Carpenter,  26  Vt.  638. 

8  See  Perry  v.  Phipps,  10  Ired.  259. 

*  Murgoo  V.  Cogswell,  1  E.  D.  Smith,  359. 

»  Amick  V.  O'Hara,  6  Blackf .  258. 


184  DUTIES  OF  INDIVIDUALS  INTER  SE.     [Chap.  IX 


CHAPTER    IX. 

CONVERSION. 

§  1.    Introductoky. 

Statement  of  the  duty.  A  owes  B  the  duty  to  forbear  to 
exercise  dominion  (1)  over  the  latter' s  general  property  in 
personal  chattels ;  or  (2)  over  his  special  property  in  the 
like  things. 

OBSERVATIONS. 

1-  ^y  "general  property"  is  meant  such  an  ownership 
of  the  goods  as  will  suffice  to  pass  a  good  title  thereto. 

2.  By  "  special  property"  is  meant  a  right  of  possession 
not  amounting  to  general  propert}'. 

3.  By  "bare  possession"  merely  is  meant  a  possession 
unlawfull}'  obtained. 

4.  The  action  for  converting  property  is  commonly  called 
"  trover,"  —  a  term  meaning  "  to  find,"  which  was  used  in 
the  old  precedents  of  declaration ;  the  plaintiff,  by  means 
of  a  fiction,  alleging  that  he  had  lost  and  the  defendant 
had /oMKc?  and  converted  to  his  own  use  the  chattel  in 
question.^ 

5.  The  action  of  trover  is  an  action  to  recover  (not  spe- 
cific articles,  but)  damages  for  the  conversion  of  chattels 
personal,  or  movable  goods,  to  the  value  of  the  interest 
converted. 

6.  By  an  "  act  of  dominion  "  is  meant  an  act  tantamount 
to  an  exercise  of  ownership. 

7.  The  action  of  detinue  has  become  nearly  if  not  quite 

1  The  allegation  was  at  first  probably  real,  arising  perhaps  from 
the  common  action  for  strays. 


§  2.]  CONVERSION.  185 

obsolete  in  this  country.  Its  object  is  to  recover  chattels 
in  specie^  and  not  damages  apart  from  the  recover}'  of  the 
chattels.     It  has  been  superseded  by  replevin  and  trover. 

8.  The  action  of  reple\dn  seeks  to  recover  chattels  per- 
sonal in  specie^  wrongfully  withheld.  It  is  much  regulated 
by  statute,  and  presents  features  not  altogether  alike  in  the 
different  States.  Its  various  statutory  phases  cannot  be 
examined  in  the  present  work. 

9.  As  in  trespass,  so  in  trover,  detinue,  or  replevin  the 
thing  alleged  to  have  been  converted  must  be  capable  of 
ownership  as  property.-^ 

§  2.   Of  Possession. 

The  possession  of  a  chattel  personal,  that  is,  of  a  mov- 
able article,  or  the  right  of  possession  thereof,  is  necessary 
to  support  an  action  for  conversion,  just  as  has  been  seen 
to  be  the  case  with  an  action  for  trespass.  The  plaintiff 
fails  in  trover  if  it  appear  that  he  has  parted  with  his  right 
of  possession,  and  has  not  before  suit  become  reinvested 
with  that  right.  For  example  :  The  defendant,  a  sheriff, 
wrongfully  levies  upon  goods  of  tlie  plaintiff  in  the  hands 
of  a  lessee  of  the  property,  and  carries  the  goods  away. 
The  plaintiff  cannot  treat  the  act  as  a  conversion,  though 
the  tenant  could,  since  the  plaintiff  was  not  entitled  to  the 
possession  of  the  propert}'.^ 

On  the  other  hand,  the  right  of  possession  of  the  chattels 
is  sufficient  to  enable  the  general  owner  to  sue  for  a  conver- 
sion thereof,  though  he  have  not  the  actual  possession  at  the 
time  of  the  wrongful  act ;  because,  as  was  stated  in  the  pre- 
ceding chapter,  the  ownership  of  goods  draws  to  the  owner 
the  possession,  in  contemplation  of  law.  For  example : 
The  defendant  buys  a  chattel  belonging  to  the  plaintiff 
from  A,  who  had  no  right  to  sell  it.     The  plaintiff,  being^ 

1  See  ante,  p.  182.  2  Gordon  v.  Harper,  7  T.  R.  9. 


186  DUTIES  OF  INDIVIDUALS  INTER  SE.     [Chap.  IX. 

the  owner,  is  deemed  to  have  been  in  possession  of  the 
chattel  at  the  time  of  the  conversion  b}'  the  defendant.^ 

A  person  having  the  special  property  of  goods  in  his 
rightful  possession  can  maintain  an  action  for  conversion 
against  all  persons  who  ma}'  wrongfuU}^  take  the  goods 
from  him,  though  the  act  be  done  by  command  of  the 
owner  of  the  goods.  For  example :  The  defendant  takes 
a  horse  out  of  the  possession  of  the  plaintiff,  the  plaintiff 
having  a  lien  upon  the  animal.  The  defendant  acts  by 
direction  of  the  owner,  but  without  other  authority.  He 
is  liable  for  the  conversion  of  the  horse. ^ 

It  follows  that  a  person  in  the  rightful  possession  (actual 
or  legal)  of  goods,  in  which  he  has  a  special  property',  may 
maintain  an  action  against  the  owner  himself  for  any  un- 
permitted disturbance  or  refusal  of  his  possession  ;  since, 
if  the  owner  cannot  give  an  authority  to  another  to  take 
the  goods,  he  cannot  take  them  himself.  For  example : 
The  defendant,  owner  of  a  title-deed,  in  the  possession  of 
the  plaintiff  under  a  temporary  right  to  hold  it,  takes  it  by 
permission  of  the  plaintiff  for  a  particular  purpose,  and 
then,  during  the  continuance  of  the  plaintiff's  right  to  hold 
it,  refuses  to  redeliver  it.  The  defendant  has  violated  his 
dut}'  to  the  plaintiff,  and  is  liable  for  the  conversion.^ 

One  who  has  but  a  possession  of  chattels,  though  with- 
out a  right  to  hold  them  against  the  owner,  is  also  protected 
against  all  persons  having  neither  a  right  of  property'  nor  of 
possession.  The  mere  fact  that  the  possessor  of  goods  has 
no  right  to  hold  them,  as  against  persons  having  a  general 
or  higher  special  property  in  the  goods,  gives  no  privilege  to 
a  stranger  to  interfere  with  the  party's  possession.     So  to 

1  Hyde  v.  Noble,  13  N.  H.  494;  Clark  v.  Rideout,  39  N.  H.  238; 
Carter  v.  Kingman,  103  Mass.  617. 

2  See  Outcalt  v.  Durling,  1  Dutch.  443.  The  form  of  action  in 
tliis  case  was  trespass,  but  it  might  as  well  have  been  trover.  The 
injured  party  can  sue  in  either  form  in  such  cases. 

3  Roberts  v.  VVyatt,  2  Taunt.  2G8. 


§  2.]  CONVERSION.  187 

interfere  would  be  a  breach  of  duty  to  the  possessor  which 
Mould  render  the  person  interfering  liable  for  the  value  of 
the  goods.  For  example :  The  defendant,  a  stranger, 
refuses  to  return  to  the  plaintiff  a  jewel,  wliich  the  latter 
has  found  and  shown  to  the  defendant.  Tlie  defendant's 
act  is  a  breach  of  duty  to  the  plaintiff,  and  he  is  liable  for 
the  value  of  the  jewel. ^ 

It  would  be  different,  however,  if  the  defendant  acted 
under  express  autliority  of  the  owner,  or  of  one  entitled  to 
the  possession  of  the  propex-ty.  But,  according  to  the  pre- 
vailing doctrine,  the  defendant  could  not  set  up  the  rights 
of  a  third  person  (the  Jus  tertii)  without  authority  from 
the  latter.'^  That  is,  the  defendant  can  deny  the  plaintiff's 
right  onl}-  by  showing  a  better  right  in  himself.^  And  the 
same  rule  prevails  in  an  action  of  replevin  for  the  specific 
goods.^ 

In  order,  however,  that  possession  should  confer  the  right 
to  sue  in  trover  or  replevin,  the  possession  must,  as  in  an 
action  for  trespass,  be  rightful  for  the  time,  though 
subject  to  be  defeated  b}'  the  claim  of  one  who  has  a 
superior  right  of  property.  In  other  words,  a  person  who 
has  acquired  possession  of  goods  unwarrantably,  whether 
by  theft  or  by  fraud,  force,  or  violence,  or  otherwise, 
without  title  or  right,  cannot  maintain  an  action  of  trover 
or  replevin  for  the  detention  of  the  goods  even  against  one 
who  has  taken  them  away  from  him  in  a  like  or  an}'  other 
manner.^  For  example  :  Tlie  defendant  takes  goods  be- 
longing to  himself  out  of  the  possession  of  the  plaintiff,  a 

'  1  Armory  v.  Delamirie,  1  Strange,  505;  s.  c.  Bigelow's  L.  C.  Torts, 
388. 

2  Rogers  v.  Arnold,  12  Wend.  30 ;  Jefferies  v.  Great  Western  Ry. 
Co.,  5  El.  &  B.  802;  Cheesman  i-.  Exall,  6  Ex.  341;  Bigelow's  L.  C. 
Torts,  426 ;  1  Smith's  L.  C.  650-653  (7th  Am.  ed.). 
*^    8  Hubbard  v.   Lyman,  8  Allen,  520,— Landon    v.    Emmons,   91 
Mass.  37.  *  Rogers  v.  Arnold,  SM/iro. 

6  See  ante,  p.  164;  Buckley  v.  Gross,  3  Best  &  S.  566. 


183  DUTIES  OF  INDIVIDUALS   INTER   SE.     [Chap.  IX. 

sheriff,  who  had  seized  the  goods  as  the  goods  of  P.  The 
act  is  no  breach  of  duty  to  the  plaintiff.^ 

In  order  to  confer  a  right  upon  the  finder  of  goods,  he 
must  therefore  have  taken  possession  in  good  faith,  and 
not  feloniously,  —  with  a  puqDOse  of  returning  the  property 
to  the  owner  upon  his  appearance  and  proof  of  property. 

The  finding  of  a  chattel  does  not,  however,  in  all  cases 
give  a  right  to  hold  the  article  against  all  persons  having 
no  right  of  property  in  it ;  though  the  finding  and  taking 
possession  were  not  unlawful  as  against  the  loser.  The 
chattel  may  be  found  upon  the  premises  of  another,  in 
such  a  situation  as  to  indicate  that  it  was  voluntarily 
placed  in  possession  of  the  owner  of  the  premises.  When 
this  is  the  case,  the  possession  of  the  article  is  deemed  to 
be  in  the  occupant  of  the  premises,  and  not  in  the  finder. 
The  former  can  therefore  maintain  trover  or  replevin 
against  the  latter,  should  he  refuse  to  surrender  to  him 
the  chattel.  For  example :  The  defendant,  a  barber,  re- 
ceives from  the  plaintiff,  a  customer  in  his  shop,  a  pocket- 
book  containing  mone}^  which  the  plaintiff  has  discovered 
Ijing  upon  a  table  in  the  defendant's  shop.  The  plaintiff, 
in  handing  the  pocket-book  to  the  defendant,  tells  him  to 
keep  it  until  he  can  discover  the  owner,  and  then  return  it 
to  the  loser.  No  one  having  called  for  the  article,  the 
plaintiff  claims  it,  and  the  defendant  refuses  to  give  it  to 
him.  This  is  not  a  breach  of  duty  to  the  plaintiff,  since 
the  fact  that  the  pocket-book  was  left  upon  the  defendant's 
table  indicates  that  the  owner  put  it  there  by  a  voluntary 
act,  and  so  put  it  into  the  defendant's  custody'. '^ 

If,  however,  the  chattel  be  found  in  a  position  which 
indicates  that  it  could  not  have  been  voluntarily  placed 
there,  but  must  have  been  unintentionally  parted  with,  and 
so  truly  lost  the  moment  it  escaped  the  owner,  it  does  not 

1  Kemp  V.  Thompson,  17  Ala.  9. 
■^  2  McAvoy  V.  Medina,  11  Allen,  648. 


§  3.]  '  CONVERSION.  189 

fall  into  the  custody  and  possession  of  the  occupant  of  the 
premises  unless  he  (or  his  servant)  first  discover  it  there. 
If  another  first  find  it,  the  possession,  as  between  himself 
and  the  occupant,  is  iu  him,  the  finder.  For  example : 
The  defendant,  a  shop-keeper,  receives  from  the  plaintiff 
a  parcel,  containing  bank-notes,  which  the  latter  has 
picked  up  from  the  floor  of  the  defendant's  shop  ;  the 
plaintiff,  on  handing  the  parcel  to  the  defendant,  telhng 
him  to  keep  the  same  till  the  owner  claims  it.  The  de- 
fendant advertises  the  parcel,  but  no  one  claims  it,  and 
three  j-ears  having  elapsed,  the  plaintiff  requests  the 
defendant  to  return  to  him  the  bills,  at  the  same  time  ten- 
dering the  cost  of  advertising,  and  even  offering  an  indem- 
nity. The  defendant  refuses.  This  is  a  breach  of  duty 
to  the  plaintiff,  and  the  defendant  is  liable  to  him  for  the 
conversion  of  the  parcel.^ 

A  servant,  when  not  a  bailee,  is  considered  incapable  of 
having  possession  of  his  master's  goods  for  the  purposes 
of  an  action  of  trover  or  replevin :  the  possession  is  the 
master's.  For  example :  The  defendant  takes  goods  out 
of  possession  of  the  plaintiff,  a  sheriff's  deputy,  without 
authority.  The  act  is  deemed  not  a  breach  of  dut}'  to  the 
plaintiff,  since  he  is  but  a  servant;  though  it  would  be 
otherwise  as  to  the  sheriff.^ 

§  3.  Of  What  constitutes  Conyersiok. 

It  has  been  seen  that  conversion  consists  in  the 
exercise  of  an  act  of  dominion  over  the  movables  of 
another.  There  are  two  classes  of  acts  of  dominion  ;  first, 
where  the  wrong-doer  appropriates  to  himself  the  goods 
of  another ;  secondly,  where,  without  appropriating  them 

1  Bridges  v.  Hawkesworth,  21  Law  J.  Q.  B.  75;  s.  c.  7  Eng.  Law 
&  Eq.  424. 

2  Hampton  v.  Brown,  13  Ired.  18;  ante,  p.  164.  See,  however, 
Mathews  v.  Harsell,  1  E.  D.  Smith,  393. 


190  DUTIES  OF  INDIVIDUALS  INTER  SE.     [Chap.  IX 

to  liimself,  he  intentionall}"  deprives  the  owner,  or  person 
having  the  superior  right,  of  their  use. 

The  most  common  illustration  of  an  act  of  dominion  of 
the  first  class  is  the  case  of  a  sale  of  goods,  made  without 
authority  of  the  owner.  Every  sale  without  restriction  by 
a  person  having  no  right  to  sell  is  a  conversion,  and  ren- 
ders the  vendor  liable  in  an  action  of  trover.  For  exam- 
ple :  The  defendant,  an  officer,  levies  upon  goods  as  the 
property  of  a  third  person,  some  of  which  belong  to 
the  plaintiff,  takes  them  away,  after  being  informed  of  the 
plaintiff's  claim,  and  sells  the  whole.  This  is  a  conver- 
sion of  the  plaintiff's  goods  ;  though  it  would  have  been 
otherwise  had  the  goods  been  fraudulently  mixed  bj'  the 
plaintiff  with  those  of  the  third  person,^  and  a  separation 
not  offered  bj'  the  plaintiff.^ 

The  same  consequence  follows  where,  having  a  right  to 
make  a  sale  the  part}'  selling  transgresses  his  right ;  since 
to  do  so  is  to  assert  that  he  may  sell  according  to  his  own 
will,  and  that  is  to  exclude  the  rights  of  all  others.  For 
example:  The  defendant,  mortgagor  of  a  horse,  of  which 
he  has  remained  in  possession  by  consent  of  the  plaintiff, 
the  mortgagee,  sells  the  same  absolutely'.  This  is  a  con- 
version, and  the  defendant  is  liable,  though  he  might  have 
disposed  of  his  own  interest  in  the  property.^  Again : 
The  defendant,  an  oflficer,  makes,  unnecessarily,  an  ex- 
cessive levy  upon  the  plaintiffs  goods,  under  a  valid  writ, 
and  sells  them.  This  is  a  conversion,  since  it  is  done  in 
disregard  of  tlie  defendant's  authorit}',  and  therefore  by 
the  party's  own  will.* 

This  principle  that  the  sale  of  property  is  an  act  of 
dominion  so  as  to  render  the  seller  liable  for  conversion  if 
he  had  no  right  to  sell  as  he  did,  applies  equally  whether 
the  vendor  knew  or  did  not  know  the  true  state  of  the 

1  Oilman  v.  Hill,  36  N.  H.  311.   »  White  r.  Phelps,  12  N.  H.  382. 

2  See  2  Kent  Com  306.  *  Aldred  v.  Constable,  6  Q.  B.  381 


§  3.J  CONVERSION.  191 

title,  or  the  actual  limit  of  his  authorit}-.  Liabilitj'  for 
converting  the  goods  of  another  to  one's  own  use  does  not 
depend  upon  the  intent  of  the  part}'  exercising  the  act  of 
dominion.  For  example :  The  defendant  sells  a  horse 
of  the  plaintiff  to  a  third  person,  the  defendant  having 
bought  the  animal  from  one  who  had  no  title  to  it,  though 
the  defendant  supposed  the  contrar}-,  and  supposed  him- 
self to  be  owner  of  the  horse  at  the  time  of  the  sale  in 
question.     The  sale  hy  the  defendant  is  a  conversion.^ 

The  pm-chaser,  though  he  buy  without  notice,  is  also 
guilty  of  a  conversion,  at  least  upon  a  refusal  to  deliver 
the  goods  to  the  owner ;  ^  unless  the  latter  facilitated  the 
purchaser's  act  and  mistake.^  There  is  conflict  of  authorit}', 
however,  whether  the  mere  purchase  b}'  an  innocent  party 
can  alone  amount  to  a  conversion,  —  a  point  to  be  adverted 
to  again,  hereafter. 

This  supposes,  however,  that  the  vendor  had  no  such 
title  as  would  justify'  him  in  making  an  absolute  sale.  If 
he  have  for  the  time  the  ownership  of  the  goods,  even 
though  his  title  was  defeasible,  a  purchaser  for  value,  with- 
out notice  that  the  title  is  hable  to  defeat,  acquires  the 
propert}'  hy  his  purchase,  and  cannot  therefore  be  guilty 
of  a  conversion  b}'  refusing  to  restore  the  goods  to  the  per- 
son who  had  the  right  to  defeat  his  vendor's  title. 

Such  would  be  the  case  where  the  purchaser's  vendor  had 
acquired  his  title  from  the  plaintiff  by  means  of  a  sale 
effected  by  false  and  fraudulent  representations.  Fraud  of 
this  character  renders  the  sale  voidable  mcrel}',  and  not 
void  ;  and  the  consequence  is,  that  the  defrauded  party  has 
a  right  to  set  aside  the  sale  so  long  as  the  property  remains 
in  the  hands  of  the  buj'er  from  himself,  or  of  an}-  one  claim- 

1  Harris  v.  Saunders,  2  Strobh.  Eq.  370,  note ;  Carter  v.  Kingman, 
103  Mass.  517. 

2  Hyde  v.  Noble,  13  N.  H.  494;  Clark  v.  Rideout,  39  N.  H.  238; 
Clark  V.  Wilson,  103  Mass.  219. 


192  DUTIES   OF   INDIVIDUALS  INTER  SE.     [Chap.  tX. 

ing  umier  him  who  is  not  a  bona  fide  purchaser  for  value. 
But  inasmuch  as  the  buyer,  notwithstanding  his  fraud,  ac- 
quired the  title  to  the  goods,  he  can  convey  that  title  ;  and 
more,  he  can  convey  a  better  right  than  he  had  himself,  pro- 
vided he  sell  to  a  bona  fide  purchaser  for  value.  Hence,  not 
only  would  the  latter  be  free  from  liabilit}-  in  refusing  to  re- 
turn the  goods  to  the  defrauded  partj'',  but  should  such  party 
obtain  possession  of  them  and  refuse  to  deliver  them  to 
the  purchaser  from  the  intermediate  seller,  he  (the  de- 
frauded part}')  would  himself  be  liable  in  trover.  For  ex- 
ample :  The  defendants,  having  previously'  been  owners  of 
a  quantit}^  of  iron,  sell  the  same  to  P.,  who  gives  them  a 
fraudulent  draft  (supposed  by  the  defendants  to  be  good) 
for  the  amount  due  for  the  property.  P.  then  sells  the 
iron  to  the  plaintiff,  who  bu^'s  for  value,  and  without  notice 
of  the  fraud.  Subsequently,  the  defendants  discover  the 
fraud,  and  send  their  servant  to  take  away  the  iron,  now 
Ij'ing  in  port  in  a  lighter  alongside  the  plaintiff's  wharf. 
The  servant  takes  away  the  hghter  and  brings  the  iron  therein 
to  the  defendants.  The  plaintiff  has  acquired  a  good  title 
to  the  iron,  and  the  defendants  are  guilty  of  a  conversion.^ 
There  are  other  cases  in  which  a  person  may  by  pur- 
chase for  value  and  without  notice  acquire  a  better  title 
than  his  vendor  had.  A  purchaser  of  goods  from  one  who 
has  b}'  the  terms  of  sale  reserved  the  right  to  buy  back  the 
property  within  a  certain  time,  acquires  (or  may  by  such  a 
transaction  acquire)  the  title  to  the  propert}^,  and  having 
a  good  title,  he  may  convey  the  same  to  one  who  purchases 
for  value  and  without  notice  so  as  to  cut  off  the  original 
owner's  right  to  i-epurchase.  The  consequence  is,  that  the 
last  purchaser  is  not  guilty  of  a  conversion  by  refusing  to 
let  the  original  owner  have  the  goods  upon  a  tender  by  him 
of  the  amount  he  was  to  pay  for  them,  though  made  within 
the  time  agreed  upon  between  him  and  his  bu^er.  The 
1  Wliite  V.  Garden,  10  Com.  B.  9ia 


§  3.]  CONVERSION.  193 

case  would  be  different,  however,  as  to  the  l)U3ei'  Horn  the 
original  owner.  His  act  in  making  the  sale  would  be  law- 
ful against  the  seller,  if  the  seller  should  never  offer  to 
repurchase  ;  but  if  the  seller  should  offer  to  repurchase, 
and  tender  the  price,  his  purchaser  would  be  bound  to 
return  to  him  the  goods,  and,  in  case  of  failure,  would  be 
liable  for  a  conversion  of  them.^ 

If,  however,  the  sale  were  upon  condition  that  the  title 
should  not  pass  until  the  performance  of  some  condition, 
the  partj^,  not  ha^dng  acquired  a  title,  could  not  convey 
one  ;  and  an  attempt  to  do  so  bj'  a  sale  would  subject  the 
seller  to  liability  in  trover,  and  the  bu3^er  also,  at  least,  if 
tne  buj'er  should  refuse  to  surrender  the  property  to  the 
owner.  For  example  :  The  defendants  purchase  furniture 
ti'om  W.,  who  had  taken  possession  of  the  same  upon  an 
agreement  that  he  should  keep  it  six  months,  and  if  within 
that  time  he  should  pa}'  a  certain  sum  for  it,  it  should  be 
his  ;  otherwise,  he  was  to  pay  twenty-five  per  cent,  of  the 
price  for  the  use.  The  sale  to  the  defendants  is  made 
shortly  after  ^Y.  takes  possession  of  the  furniture  and  be- 
fore payment  for  it.  A  refusal  by  the  defendants  to  restore 
the  property'  to  the  plaintiff  is  a  breach  of  duty  to  him, 
and  makes  them  liable  for  the  value  of  the  furniture. - 

According  to  recent  enunciations  of  the  law  of  England, 
the  holder  of  a  pledge  or  pawn  has  such  an  interest  in  the 
chattel  that  he  can  dispose  thereof  b}-  sale  or  repledge 
without  subjecting  the  purchaser  or  repledgee  to  liability, 
and  without  subjecting  himself  thereto,  except  in  either 
case  upon  a  failure  to  produce  the  pledge  or  pawn  upon 
tender  of  the  debt  to  secure  which  the  chattel  was  given. 
For  example  :  The  defendant  has  taken  in  pledge  from  IS. 
• 

1  See  Donald  v.  Suckling,  Law  R.  1  Q.  B.  585;  s.  c.  Bigelow's  L. 
C.  Torts,  394. 

2  Sargent  v.  Gile,  8  N.  H.  325,  denying  Vincent  v.  Cornell,  13 
Pick.  294. 

13 


194  DUTIES  OF  INDIVIDUALS  INTER  SE.     [Chap.  IX. 

certain  bonds,  which  the  plaintiff  had  pledged  to  S.  for  the 
security  of  a  debt  smaller  than  the  amount  of  the  debt  of  S. 
to  the  defendant ;  the  repledge  being  made  before  the  ma- 
turity of  the  original  debt,*  and  before  payment  or  tender 
thereof.  The  refusal  of  the  defendant  to  return  the  bonds 
to  the  plaintiff  except  on  tender  to  the  defendant  of  the 
amount  due  to  S.  is  not  a  violation  of  duty  to  the  plaintiff; 
nor  would  the  act  of  S.  amount  to  a  conversion,  unless  upon 
tender  of  the  debt  due  him  he  should  fail  to  return  the  bonds.^ 

One  who  has  a  special  property  in  goods  may  or  may  not 
be  able  to  dispose  of  his  interest  therein,  according  to  the 
nature  of  his  interest.  Not  every  special  property  is  alien- 
able. In  many  cases  of  bailment,  the  special  objects  to 
be  effected  forbid  that  the  bailee  should  have  an  assignable 
interest.  Such  is  the  case  (1)  where  the  bailment  is  made 
upon  a  trust  in  the  personal  skill,  knowledge,  or  efficiency 
of  the  bailee.  Such  is  the  case  (2)  where  the  bailee  has  a 
mere  lien  upon  the  goods  entrusted  to  him.  And  such  is 
the  case  (3)  where  the  bailment  is  at  will.  In  either  of 
these  cases,  any  attempt  by  the  bailee  to  assign  his  inter- 
est in  the  property,  followed  by  deUvery  of  possession,  puts 
an  end  at  once  to  the  bailment.  The  consequence  is,  that 
the  assignee  acquires  no  title  or  right,  and  becomes  liable 
in  trover  on  refusing  to  surrender  the  goods  to  the  owner, 
even  if  not  by  merely  taking  them.' 

There  is,  however,  a  large  class  of  bailments  where  the 
trust  is  accompanied  with  other  incidents  than  those  per- 
taining to  a  simple  bailment,  and  where  there  is  no  ele- 
ment of  personal  trust,  and  none  of  the  characteristics  of 
an  estate  at  will ;  and  in  this  class  it  is  clear  that  the  bailee 
has  an  assignable  interest.*  There  can  be  no  conversion, 
therefore,  in  the  act  of  transferring  such  an  interest  merely, 

1  That  is,  while  the  bonds  were  still  subject  to  redemption  by  the 
plaintiff. 

2  ])onald  V.  Suckling,  Law  R.  1  Q.  B.  585;  8.  c.  L.  C.  Torts,  394. 
»  See  Bailey  i;.  Colby,  34  N.  H.  29.  *  Id. 


§  3.]  CONVERSION.  195 

provided  the  assignee  claims  only  the  rights  of  the  assignor ; 
because  the  latter,  having  exercised  no  act  of  dominion  over 
the  property-,  but  having  dealt  simp]}-  with  his  own  interest, 
did  not  reinvest  the  owner  with  a  right  of  possession. 

An  attempt  b}'  the  bailee  to  dispose  of  the  goods  abso- 
lutelj'  would  be  different ;  ^  unless  he  were  a  pledgee.  For 
though  a  bailee  could  not,  without  fault  on  the  part  of  the 
owner  (b}'  holding  him  out  as  having  a  right  to  sell  abso- 
lutely) ,  dispose  of  an}-  thing  be^'ond  his  own  interest,  the 
attempt  to  do  so,  followed  by  the  overt  act,  would  be  to 
exercise  dominion  over  the  goods.  This  would  defeat  the 
bailee's  right  of  possession,  inasmuch  as  it  would  amount 
to  a  renunciation  of  any  right  subordinate  to  the  general 
property  of  another ;  and  having  renounced  his  subordinate 
right,  the  same  would  revert  to  the  owner,  thus  putting  him 
into  position  to  sue  for  conversion. 

The  result  would  further  be  to  enable  the  owner  to  main- 
tain trover  or  replevin  against  the  purchaser  from  the 
bailee,  should  the  purchaser  take  the  goods  and  refuse  to 
deliver  them  to  the  owner.  And  on  the  other  hand,  if  the 
owner,  treating  the  right  of  the  bailee  as  at  an  end,  and 
reinvested  in  himself,  should  resume  possession  of  the 
goods,  he  would  not  be  liable  to  the  purchaser.  For  ex- 
ample :  The  defendant,  owner  of  two  steers,  sells  them  to 
Y.,  upon  condition  that  the  title  is  to  remain  in  the  de- 
fendant until  Y.  pays  for  them.  Before  Y.  paj's  for  the 
property,  he  sells  the  same  absolutely,  as  his  own,  to  the 
plaintiff,  whereupon  the  defendant  resumes  possession  of 
the  animals.  This  is  no  breach  of  dut}'  to  the  plaintiff; 
since  the  sale  b}^  Y.  was  an  act  of  dominion  over  the 
propert}',  inconsistent  with  Y.'s  rights,  and  reinvested  the 
defendant  with  the  right  of  possession.'^ 

It  is  not  always  necessary'  that  there  should  be  a  sale  of 
the  entire  property  held  in  order  to  effect  a  conversion  of 

I  Bailey  v.  Colby,  34  N.  H.  29.  «  Id- 


196         DUTIES   OF  INDIVIDUALS  INTER  SE.     [Chap.  IX 

the  whole.  If  the  part  sold  be  necessary  to  the  substan- 
tially complete  usefulness  of  the  rest,  a  wrongful  sale  of 
such  part  will  be  a  conversion  of  the  whole.  And  the  same 
is  true  where  the  thing  held  is  held  under  one  entire  right, 
though  the  propertj-  be  so  severable  as  not  to  interfere  with 
the  usefulness  or  value  of  the  parts :  in  such  a  case,  a  con- 
version of  part  b}'  the  holder  is  a  conversion  of  the  whole. 
For  example  :  The  defendant  finds  a  raft  of  timber  belong- 
ing to  the  plaintiff,  lodged  on  a  sandbar  in  a  stream,  takes 
possession  of  it,  hires  a  person  to  assist  him  in  removing 
part  of  it,  and  sells  such  person  the  residue,  reserving  to 
himself  the  part  removed.  This  is  a  conversion  of  the 
whole  raft.^ 

The  same  is  true  where  separate  articles  are  dehvered 
under  one  entire  contract  of  bailment  or  lease,  even  though 
the  articles  be  separately  enumerated  and  valued.  The 
bailment  or  lease  is  still  indivisible  in  contemplation  of 
law,  and  conversion  of  part  is  conversion  of  the  whole. 

If,  however,  separate  articles  be  severally'  bailed  or 
leased,  b}'  distinct  contracts,  though  all  be  delivered  and 
bargained  for  at  the  same  time,  the  rule  of  law  is  diflfer- 
ent :  a  conversion  of  one  of  the  articles  or  parts  does  not 
in  such  a  case  operate  as  a  conversion  of  the  whole. 

K  the  owner  of  goods  stand  by  and  permit  them,  with- 
out objection,  to  be  sold  as  the  property  of  another,  the 
purchaser  acquires  a  good  title,  and  is  not  liable  in  trover 
to  the  owner  for  a  refusal  to  deliver  them  to  him.  For 
example:  The  defendant  purchases  machinery  of  M.,  the 
legal  title  to  which  at  the  time  of  the  sale  is  in  the  plain- 
tiffs. The  machinery  is  sold  under  a  levy  of  execution 
against  M.,  and  the  plaintiff's,  though  having  notice  of  the 
levy,  and  having  repeatedly  conversed  about  it,  before  the 
sale,  with  the  attorney  of  the  party  who  made  the  levy, 

1  Gentry  v.  Madden,  3  Pike,  127.  But  compare  Philpot  v.  Kelley, 
8  Ad.  &  E.  106,  116,  117. 


§  3.]  CONVERSION.  197 

never  lay  any  claim  to  the  property  until  aftei  the  sale. 
The  defendant's  refusal  to  suiTender  the  machiner}'  to  the 
plaintiff  is  not  a  breach  of  duty.^ 

A  person  having  an  authority  to  sell  the  goods  of  another 
ma^'  also  be  guilty  of  a  conversion.  Such  will  be  the  case 
if  he  fail  to  coufonn,  in  a  material  particular,  to  the  temas 
of  his  authority.  For  example  :  The  defendant  receipts  to 
the  plaintiff  for  certain  shares  of  stock  to  be  sold  by  him 
for  the  plaintiff  at  a  commission,  and,  instead  of  selling,  the 
defendant  exchanges  the  stock  for  other  property.  This  is 
a  conversion.'^ 

The  case  might  possibly  be  otherwise  if  the  act  of  the 
agent  could  be  presumed  by  the  purchaser  to  be  within  the 
general  scope  of  his  authority.  In  such  a  case  the  pur- 
chaser would  acquire  a  good  title  to  the  property  ;  and  this 
could  not  occur,  perhaps,  where  the  act  of  the  vendor  was 
a  conversion,  if  the  effect  of  such  an  act  would  be  to  revest 
his  rights  in  the  owner,  and  thus  prevent  their  transmis- 
sion to  the  purchaser.  The  agent,  however,  would  be 
liable  to  his  principal  for  his  misconduct  in  violating  his 
instructions.^ 

To  pledge  the  goods  of  another  without  authority  is  also 
a  conversion ;  and  the  consequence  vs  that  the  pledgee 
derives  no  right  to  hold  the  chattel,  the  act  of  the  pledgor 
having  reinvested  the  owner  with  his  right  of  possession. 
For  example:  The  defendant  lends  money  to  E.,  and  re- 
ceives by  way  of  security  a  quantity  of  boot  leather,  which 
had  been  placed  by  the  plaintiff  in  the  hands  of  E.  to  be 
made  up  into  boots,  on  hire.  A  refusal  by  the  defendant 
to  surrender  the  leather  to  the  plaintiff  is  a  conversion.* 

Appropriating  an  article  held  in  bailment  to  a  use  not 
contemplated  at  the  time  of  the  contract  of  bailment  is 

1  Pickard  v.  Sears,  6  Ad.  &  E.  469.  See  Stephens  v.  Baird,  9 
Cowen,  274;  Dezell  v.  Odell,  3  Hill,  215. 

2  Haas  V.  Damon,  9  Iowa,  589.      »  Sargeant  v.  Blunt,  10  Johns.  74. 
*  Carpenter  v.  Uale,  8  Gray,  157. 


198         DUTIES  OF  INDIVIDUALS  INTER  SE.     [Chap.  IX. 

also  a  conversion.  For  example  :  The  defendant  hires  of 
the  plaintiff  a  horse  to  ride.to  York,  and  rides  it  beyond 
York  to  Carhsle.  This  is  a  conversion  of  the  animal, 
entitling  the  plaintiff,  on  return  of  the  property,  at  least  to 
nominal  damages,  and  to  actual  damages  if  any  loss  be  in 
fact  sustained  b}'  reason  of  the  act.^ 

It  has  sometimes  been  supposed  that  there  can  be  no 
right  of  action  in  trover  in  such  cases,  unless  the  chattel 
was  injured  in  the  misappropriation.^  But  there  is  ground 
for  doubting  the  correctness  of  this  doctrine.  The  foun- 
dation of  the  action  is  the  usurpation  of  the  owner's  right 
of  propert}',  —  the  exercise  of  dominion  over  another's 
chattel,  —  and  not  the  actual  damage  inflicted.^  It  is  true, 
the  plaintiff  in  trover  seeks  to  recover  the  value  of  the 
thing  converted,  but  if  he  has  received  it  back,  or  if  it  has 
been  tendered  back  in  proper  condition,  he  will  be  allowed 
to  recover  no  more  (be^'ond  nominal  damages)  than  the 
amount  of  his  loss.* 

In  all  of  the  foregoing  cases,  it  will  be  observed  that 
there  is  something  more  than  an  assertion,  by  word  of 
mouth,  of  dominion  over  the  chattel.  An  assertion  alone 
—  not  followed  by  any  act  in  pursuance  of  it,  such  as  a 
refusal  to  surrender  the  chattel  to  the  person  entitled  to 
possession  —  would  not  amount  to  a  conversion.  There 
must  be  some  unauthorized  interference  with  the  plaintiff's 
right  of  possession.  Even  an  attempted  exercise  of  do- 
minion, without  right,  appears  to  be  insufficient  to  consti- 
tute a  conversion,  if  the  owner's  right  was  not  in  fact 
interrupted.     For  example :    The   defendant,    an  officer, 

1  Isiiack  V.  Claik,  3  Bulst.  306;  Perham  v.  Coney,  117  Mass.  102. 

■•^  Johnson  v.  Weedinan,  4  Scam.  495;  Harvey  v.  Epes,  12  Gratt. 
153.  3  Pcrhani  v.  Coney,  supra. 

*  Delano  v.  Curtis,  7  Allen,  470.  Judgment  for  the  plaintiff  in 
trover  does  not  vest  the  property  in  the  defendant.  ^Lovejoy  v. 
Murray,  3  Wall.  1 ;  Brady  v.  Whitney,  24  Mich.  154  ;>Brinsmead  v. 
Harrison,  Law  R.  6  C.  P.  584. 


\ 


§  .'].]  CONVERSION.  199 

makes  a  declaration  of  attachment  of  goods  already  duly 
levied  upon  by  the  plaintiff  in  behalf  of  a  third  person, 
and  requests  a  party  to  look  after  and  take  care  of  the 
goods,  and  to  tell  all  who  come  there  that  the  goods  are 
attached.  This  is  not  a  conversion,  since  the  act  has  no 
tendenc}'  to  impair  or  interfere  with  the  rights  of  the  first 
attaching  officer.^ 

When,  however,  the  goods  have  been  converted  to  the 
defendant's  own  use,  the  defendant  is  hable,  though  he  had 
no  intention  of  wrongfully  interfering  with  the  rights  of 
another,  —  a  proposition  which  has  already  appeared  inci- 
dentally in  several  forms. 

In  the  foregoing  classes  of  cases,  the  defendant  has 
appropriated  the  goods  in  question  to  his  own  use.  But, 
as  has  been  stated,  a  wrongful  act  of  dominion  may  be 
committed  without  so  appropriating  the  goods.  It  is 
'  enough  that  the  defendant  has  intentionally  deprived  the 
plaintiff  of  the  possession  of  his  goods  or  usurped  his 
rights  over  them,  though  for  the  benefit  of  a  third  person. 
But  in  these  cases  there  must  be  an  intention  to  interrupt 
the  plaintiff's  rights  ;  unless  the  defendant  be  a  common 
carrier,  who  is  an  insurer,  or  an  agent,  who  is  sometimes  lia- 
ble in  trover  for  surpassing  his  instructions,  as  has  been  seen. 
For  example  :  The  defendant,  manager  of  a  feny,  receives 
on  board  his  boat  the  plaintiff,  with  two  horses.  Before 
starting,  the  plaintiff  is  reported  to  the  defendant  as  behav- 
ing improperl}',  and  though  he  has  paid  his  fare  for  trans- 
portation, and  the  defendant  tells  him  that  he  will  not 
carry  the  horses,  and  that  the}^  must  be  taken  ashore,  the 
plaintiff  refuses  to  take  them  off  the  boat,  whereupon  the 
defendant  puts  them  ashore,  and  has  them  taken  to  a  livery 
for  keeping.  The  plaintiff  goes  with  the  boat,  and  the 
next  day  sends  to  the  livery  stable  for  his  horses.  In 
repl}',  the  plaintiff  is  told  that  he  can  have  his  horses  by 

1  Poller  V  Lenox  Iron  Works,  2  Allen.  182. 


200         DUTIES   OF  INDIVIDUALS  INTER  SE.     [Chap.  IX. 

coming  and  paying  the  charges  for  keeping,  otherwise  the 
horses  to  be  sold  to  pay  exiDenses.  They  are  sold  accord- 
ingly, and  damages  as  for  a  conversion  are  sought  of  the 
defendant.  The  action  is  not  maintainable,  since  there  is 
nothing  to  show  that  the  defendant  intended  to  deprive  the 
plaintiff,  even  for  a  moment,  of  his  property.^ 

Any  asportation  of  a  chattel,  however,  for  the  use  of  a 
third  person  amounts  to  a  conversion,  for  the  reason  that 
the  act  is  inconsistent  with  the  right  of  dominion  which 
the  owner  (or  person  entitled  to  possession)  has  in  it.^ 
And  the  same  is  true  of  an  intentional,  or  possibly  negli- 
gent, destruction  of  the  chattel.^ 

Demand  and  refusal  to  surrender  the  goods  to  the  party 
entitled  to  them  always  constitute  a  conversion,  provided 
only  the  articles  in  question  are  property.  And  the  mere 
prohibition  of  traffic  in  goods  which  otherwise  would  be 
property  does  not  destroy  their  property  quahty.  For  ex-" 
ample  :  The  defendant,  on  demand  by  the  plaintiff,  refuses 
to  surrender  to  the  latter  intoxicating  hquors  (put  into  the 
defendant's  hands  to  test,  with  right  of  purchase)  after  the 
object  of  the  bailment  has  terminated.  The  goods  are 
property,  though  traffic  in  them  is  prohibited  by  law,  and 
the  defendant  is  liable  for  a  conversion  of  them.* 

Demand  of  the  goods,  followed  by  a  refusal  to  deliver 
them,  is  always  necessary  unless  the  plaintiff  can  estabhsh 
some  other  act  of  conversion.  But  if  an}-  act  of  conver- 
sion, apart  from  demand  and  refusal,  has  been  committed, 
the  injured  party  is  entitled  to  bring  suit  without  first  de- 
manding his  property.  In  other  cases,  a  demand  and 
wrongful  refusal  will  be  necessary,  since  without  them  there 

J  Fouldee  v.  Willoughby,  8  Mees.  &  W.  540.  For  other  examples, 
see  Simmons  v.  Lillystone,  8  Ex.  431;  Thorogood  v.  Robinson,  6 
Q.  B.  7dO. 

2  Fouldee  v.  Willoughby,  supra.  8  lb. 

*  Booraem  v.  Crane,  103  Mass.  622. 


§  3.]  CONVERSION.  201 

has  been  no  wrongful  exercise  of  dominion.^  For  exam- 
ple :  The  defendant  coUusivel}'  purchases  goods  from  a 
trader  on  the  eve  of  the  trader's  bankruptcy,  and  takes  the 
property  into  his  possession.  The  assignee  of  the  trader 
brings  trover  without  a  demand.  The  action  is  not  main- 
tainable, since  the  defendant  had  been  guilty  of  no  con- 
version ;  the  trader  being  competent  to  contract,  though 
his  contract  of  sale  was  liable  to  impeachment.''^ 

Of  the  last  example,  it  should  be  observed  that  (in  ac- 
cordance with  a  principle  already  stated)  the  fraud  of  the 
trader  and  the  defendant  did  not  make  the  sale  void  :  its 
onl}'  effect  was  to  render  it  voidable.  The  contract  was 
therefore  binding  until  disaffiimed ;  and  a  disaffirmance 
could  be  made  only  by  a  demand  of  the  goods,  or  bj^  some 
act  tantamount  thereto.  And  the  demand  and  refusal,  that 
is,  the  conversion,  must  be  apart  from  the  bringing  of  suit, 
when  such  acts  are  necessarj' ;  for  the  cause  of  action  must 
have  arisen  befoi'e  suit  was  begun.  In  the  cxnm])le  given, 
if  the  defendant  had  sold  the  goods,  or  improperly-  detained 
them  after  a  disaffirmance  of  the  sale,  the  action  would 
have  been  maintainable.' 

The  most  common  instance  of  the  necessit}'  of  demand 
and  refusal  is  where  goods  have  been  put  into  the  hands 
of  another  for  a  special  purpose,  npon  an  agreement  to 
return  when  the  purpose  is  accomplished  ;  as  to  which  the 
rule  is,  that  a  breach  of  the  contract  by  the  mere  failure 
so  to  return  the  goods  does  not  amount  to  a  conversion. 
Before  the  bailee  can  be  liable  in  trover  in  such  a  case, 
supposing  there  had  been  no  misappropriation  or  other  act 
of  dominion,  there  must  be  a  demand  for  the  goods  and  a 
refusal  to  restore  them.* 

1  1  Chitty,  Pleading,  157;  Nixon  v.  Jenkins,  2  H.  Black.  135;  Gil- 
more  V.  Newton,  9  Allen,  171 ;  Witlierspoon  v.  Blewett,  47  Miss.  570; 
Hardy  v.  Wiiecler,  56  III.  152. 

2  Nixon  V.  Jenkins,  su/jrn.  3  Bloxam  v.  Hubbard,  5  East,  407. 
*  Severin  v.  Keppell,  4  Esp.  156. 


202  DUTIES   OF  INDIVIDUALS  INTER  SE.     [Chap.  IX. 

A  refusal  to  deliver  goods  on  lawful  demand  is,  however, 
onlj-  prima  facie  evidence  of  a  conversion.^  The  defendant 
may  have  found  the  goods,  and  refused  to  surrender  them 
to  the  plaintiff  until  he  shall  have  proved  his  right  to  them. 
It  follows  from  what  has  already  been  said  that  such  a 
refusal  is  justifiable,  since,  if  the  plaintiff  is  not  entitled  to 
the  goods  by  right,  the  defendant  as  finder  has  the  better 
claim  ;  and  he  cannot  or  may  not  know  that  the  lalaintifli" 
may  not  be  a  pretender  until  he  has  fui-nished  evidence 
that  he  is  not. 

If  the  demand  be  not  made  upon  the  defendant  himself, 
but  merety  left  at  his  house  in  his  absence,  it  seems  that  a 
reasonable  time  and  opportunity  to  rest<jre  the  goods  should 
be  suffered  to  elapse  before  the  defendant's  non-compUance 
with  the  demand  can  be  treated  as  a  refusal  amounting  to 
a  conversion.  Non-compliance  with  the  demand  after  a 
reasonable  opportunity  has  been  afforded  to  obej^  it  is, 
however,  clearl}-  tantamount  to  a  refusal,  and  is  presump- 
tive evidence  of  a  conversion,  casting  upon  the  defendant 
the  burden  of  explaining  that  the  omission  to  deliver  the 
goods  was  justifiable.^ 

It  has  been  a  point  of  conflict  among  the  authorities 
whether  the  mere  taking  of  goods  hy  the  purchaser  from  a 
bailee  who  had  no  authority  to  sell,  be  such  an  act  as  to 
make  the  purchaser  liable  without  a  demand.^    In  ordinary 

1  Lockwood  V.  Dall,  1  Cowen,  322 ;  Sturges  v.  Keith,  57  HI.  451 ; 
Sargent  v.  Gile,  8  N.  H.  325. 

2  1  Chitty,  Pleading,  160 ;  Tfiorapson  v.  Rowe,  IG  Conn.  71 ;  White 
V.  Dewary,  2  N.  H.  546. 

3  On  the  affirmative  of  the  question,  see  Galvin  v.  Bacon,  2  Fairf. 
28;  Parsons  v.  Webb,  8  Greenl.  38;  Stanley  v.  Gaylord,  1  Gush. 
536;  Freede  v.  Anderson,  10  Mich.  357;  Whitman  Mining  Co.  v. 
Tritle,  4  Nov.  404.  On  the  negative,  with  some  qualifications,  Mar- 
shall V.  Davis,  1  Wend.  109;  Barrett  v.  Warren,  3  Hill,  .348;  Nash  v. 
Mosher,  19  Wend.  431;  Talmadge  v.  Scudder,  38  Penn.  St.  517; 
Sherry  v.  Pickcn,  10  Ind.  375;  Justice  v.  Wendell,  14  B.  Mon.  12. 


§  3.]  CONVERSION.  203 

cases,  the  bailee's  wrongful  act,  as  has  already  been  ob- 
served, divests  him  at  once  of  his  right  of  possession,  and 
reinvests  the  bailor  with  such  right,  so  that  nothing  can 
pass  to  the  purchaser,  not  even  a  temporary-  right  of  pos- 
session ;  and  it  should  follow  that,  if  he  attempt  to  exercise 
any  right  over  the  property,  he  would  be  guilty  of  a  con- 
version. Indeed,  it  is  conceded  b}'  some  of  the  authorities 
which  treat  the  mere  holding  of  possession  by  the  purchaser 
as  not  amounting  to  a  conversion,  that  if  the  purchaser 
took  the  goods  out  of  the  possession  of  the  bailor,  upon  the 
sale,  he  has  committed  an  act  of  conversion  ;  while  the  same 
authorities  treat  the  mere  receiving  a  delivery  of  the  goods 
from  the  hands  of  the  bailee  as  not  tortious.^ 

It  would  seem  clear,  however,  from  what  has  been  else- 
where said,  that  if,  without  absolutely  barring  his  rights, 
the  bailor  facilitated  the  act  of  the  purchaser  —  contribut- 
ing somewhat,  b^-  his  conduct  towards  the  goods,  to  cause 
the  purchaser  to  suppose  that  the  bailee  had  a  right  to  sell 
the  property,  —  the  purchaser  could  not  be  liable  without 
a  demand. 

It  has  also  been  a  point  of  conflict  of  authority  whether 
a  tenant  in  common  can  maintain  trover  against  his  asso- 
ciate for  the  sale,  or  rather  attempted  sale,  of  the  absolute 
property  of  the  common  chattel.  Most  of  the  American 
courts  which  have  considered  the  subject  hold  such  an 
action  maintainable.^  Other  authorities  consider  that 
nothing  short  of  a  substantial  destruction  of  the  common 

1  Ely  V.  Ehle,  3  Comst.  506;  Nash  v.  Mosher,  19  Wend.  431; 
Marshall  v.  Davis,  1  Wend.  100. 

-  Weld  V.  Oliver,  21  Pick.  559;  Wilson  v.  Read,  3  Johns.  175; 
Dyckman  v.  Valiente,  42  N.  Y.  549 ;  White  v.  Brooks,  43  N.  H.  402 ; 
Dain  v.  Coning,  22  Maine,  347  ;  Arthur  r.  Gayle,  38  Ala.  559 ;  Williams 
V.  Chadbourne,  6  Cal.  559.  The  contrary  is  hold  in  Farrar  v.  Beswick, 
IMees.  &  W.  682 ;  Morgan  v.  Marquis,  9  Ex.  145 ;  Mayhew  v.  Herrick, 
7  Com.  B.  229 ;  Oviatt  v.  Sage,  7  Conn.  95 ;  Barton  v.  Burton,  27  Vt 
93;  ritt  V.  Petvvay,  12  Ired.  69. 


204         DUTIES  OF  INDIVIDUALS  INTER  SE.     [Chap.  IX. 

property,  or  rather  of  the  plaintiff's  interest  in  the  com- 
mon property,  is  sufficient  for  a  conversion-,  on  the  gi'ound 
that  each  of  the  common  tenants  has  a  right  to  the  entire 
possession  and  use  of  the  goods ;  and,  as  a  sale  cannot  at 
best  convey  a  greater  interest  than  the  vendor  possesses, 
the  plaintiff  cotenant  continues  to  be  a  cotenant  with  the 
purchaser.^ 

According  to  these  authorities,  however,  it  is  not  neces- 
sary that  there  should  be  an  actual  destruction  of  the  prop- 
erty' held  in  common  (it  is  universally  admitted  that  such 
an  act  would  be  a  conversion),  but  only  that  the  com- 
munity of  interest  should  be  broken  up.  For  example : 
The  defendant,  cotenant  with  the  plaintiff  of  a  horse,  sells 
the  animal  absolutely  to  a  third  person  and  the  animal  is 
thereupon  taken  into  a  foreign  jurisdiction.  This  amounts 
to  a  destruction  of  the  plaintiff's  interest  in  the  chattel,  and 
the  defendant  is  liable  for  a  conversion. ^ 

There  are  still  other  decisions,  not  easily  understood, 
however,  which  hold  that  trover  is  maintainable  between 
cotenants  for  a  mere  withholding  of  the  chattel,  or  for  the 
misuse  of  it,  or  for  a  refusal  to  sever  and  terminate  the 
*»ommon  interest.* 

1  See  the  cases  last  cited. 

2  See  Pitt  V.  Pet  way,  supra. 

8  Agnew  V.  Johnson,  17  Penn.  St.  373;  Fiquet  v.  Allison,  12  Mich, 
328.     See  Strickland  v.  Parker,  54  Maine,  263. 


2.]  rNFRINGEMENT   OF  PATENTS,  ETC.  205 


CHAPTER  X. 

INFRINGEMENT  OF  PATENTS  AND  COPYRIGHTS. 

§  1.  Introductory. 

Statement  of  the  duty.  A  owes  to  B  the  duty  (1)  to  for- 
bear to  make,  use,  or  vend,  without  B's  license,  a  thing 
patented  b}-  B  ;  (2)  to  forbear  to  print,  publish,  or  import 
any  cop3Tighted  book  of  which  B  owns  the  copyright,  or 
knowing  the  same  to  be  so  printed,  pubhshcd,  or  imported, 
to  sell  or  expose  to  sale  an}'  copy  of  such  book ;  and  to 
forbear  to  violate  the  rights  of  B  in  respect  of  any  other 
copyrighted  matter  of  which  B  owns  the  copyright.^ 

OBSERVATION. 

The  inquiry  in  the  present  chapter  is,  not  what  consti- 
tutes a  vahd  patent  or  cop3Tight ;  but,  supposing  the  ex- 
istence of  such  right  of  property,  what  constitutes  an 
infringement  of  it. 

§  2.  Of  What  constitutes  Infringement  of  Patent. 

The  Revised  Statutes  of  the  United  States  gi-ant  to 
patentees,  their  heirs  and  assigns,  for  the  term  of  seven- 
teen years,  the  exclusive  right  to  make,  use,  and  vend  the 
patented  invention  or  discovery  throughout  the  United 
States  and  the  territories  thereof ;  -  and  for  an  infringement 
they  allow  an  action  on  the  case  in  the  name  of  the  party 
interested,  either  as  patentee,  assignee,  or  grantee.^ 

1  It  would  make  the  statement  of  this  duty  far  too  prolix  to  spe- 
cify all  of  the  rights  and  duties  arising  under  this  last  clause. 

2  Rev.  Sts.  §  4884.  »  lb.  §  4919. 


206  DUTIES   OF   INDIVIDUALS  INTER   SE.     [Chap.  X. 

Infringement  must  therefore  consist  in  the  Tvrongfiil 
making,  using,  or  vending  the  patented  thing.  But  the 
statutes  leave  it  to  the  courts  to  determine  what  constitutes 
a  making,  using,  or  vending. 

Generally  speaking,  an  infringement  in  the  making  takes 
place  whenever  another  avails  himself  of  the  subject  of  the 
invention  of  the  patentee,  without  such  variation  as  wiU 
constitute  a  new  discover}- ;  or  an  infringement  is  a  copy 
made  after  and  agreeing  with  the  principle  laid  down  in 
the  specification  of  the  patent.^  When  a  person  has  ob- 
tained a  patent  for  a  new  invention  or  a  discovery  made 
b}^  his  own  ingenuity,  it  is  not  in  the  power  of  any  one 
else,  by  simply-  varying  in  form  or  in  immaterial  particulars 
the  nature  or  subject-matter  of  such  invention  or  discov- 
ery, either  to  obtain  a  patent  for  it  himself,  or  to  use  it 
without  the  leave  of  the  patentee.  The  question  then  is, 
in  actions  for  damages  for  infringements  of  this  nature,  not 
merely  whether,  in  form  or  condition  such  as  might  be 
more  or  less  immaterial,  that  which  has  been  done  varies 
from  the  specification,  but  whether  in  realit}',  in  substance, 
and  in  eflfect,  the  party  has  availed  himself  of  the  patentee's 
invention,  in  order  to  make  the  thing  in  question.^ 

It  matters  not  therefore  that  the  person  complained  of 
has  succeeded  in  obtaining  a  patent  for  his  supposed  inven- 
tion or  discover}^ ;  if  it  be  in  substance  and  effect  a  copy 
of  the  plaintiff"s  specification  and  patent,  he  will  be  guilty 
of  a  breach  of  duty  to  the  latter  b}^  the  making,  using,  or 
vending  of  the  subject  of  it,  notwithstanding  his  letters 
patent.^ 

With  regard  to  machines,  it  is  often  a  point  of  difficulty 
to  decide  whether  a  patent  is  infringed,  since  the  same  ele- 
ments and   the  same  powers  must  be   employed  in   all 

1  Curtis,  Patents,  §  280 ;  Calloway  v.  Blcaden,  Webs.  Pat.  Cas.  523. 

2  Walton  V.  Potter,  Webs.  Pat.  Cas.  585,  Tindal,  C.  J. 

3  lb. 


§  2.]  INFRINGEMENT   OF   PATENTS,  ETC.  207 

machines.  The  criterion  of  liability  is,  however,  easily 
stated  :  it  is  whether  the  machine  complained  of  operates 
upon  the  same  principle  with  the  one  patented.  The 
material  question  must  therefore  be,  not  whether  the  same 
elements  of  motion  or  the  same  component  parts  are  used, 
but  whether  the  given  effect  is  produced  substantially  by 
the  same  mode  of  operation,  and  the  same  combination  of 
powers  in  both  machines.  Mere  colorable  differences  or 
slight  improvements  cannot  affect  the  right  of  the  original 
inventor.-^ 

It  follows  that  the  question  of  infringement  in  such  cases 
does  not  necessarily  depend  upon  the  consideration  whether 
the  mechanical  structure  of  the  machines  is  alike.  What- 
ever be  the  mechanical  structure,  the  question  is,  whether 
the  later  machine  contains  the  means  or  combination  found 
in  the  previous  one  ;  —  in  a  word,  whether  the  new  idea  is 
embodied  in  the  machine  complained  of.  If  the  plaintiff's 
combination  be  found  substantially^  incorporated  into  the 
defendant's  machine,  then  the  latter's  mechanical  construc- 
tion, whatever  it  may  be,  is  in  law  but  an  equivalent  for  the 
mechanical  construction  of  the  plaintiff's  machine.  No 
man  is  allowed  to  appropriate  the  benefit  of  the  new  ideas 
which  another  has  originated  and  put  to  use,  because  he 
ma}'  have  been  enabled,  by  superior  mechanical  skill,  to 
embody  them  in  a  different  form.  In  appropriating  the 
idea,  he  may  have  appropriated  all  that  is  valuable  in  the 
new  machine.^ 

The  mere  fact  that  the  machine  alleged  to  be  an  infringe- 
ment does  its  work  better,  or  turns  out  more  work  in  the 
same  time,  than  the  patented  article,  does  not  show  that 
there  is  no  infringement.  This  superiorit}^  might  be  due 
merely  to  superior  construction  upon  the  same  principle 

1  Odiorne  v.   Winkley,  2    Gal.   51 ;    McCormick  v.   Seymour,  2 
Blatclif.  240 ;  Blanchard  v.  Beers,  lb.  418. 
*  Blanchard  v.  Beers,  supra. 


208  DUTIES  OF  INDIVIDUALS  INTER  SE.     [Chap.  X. 

with  that  of  the  patented  machine.  Such  a  result  is  only 
to  be  considered  in  its  bearing  upon  the  question  whether 
the  principle  of  the  machine  complained  of  is  actually  and 
substantially  different  from  that  of  the  plaintiff.^  Of  course, 
if  the  greater  or  superior  efficiency  be  produced  by  reason 
of  the  use  of  means  which  are  different  in  substance  from 
those  employed  in  the  patented  machine,  and  are  not  their 
mechanical  equivalent,  there  is  no  infringement.^ 

An  infringement  is  also  committed,  though,  besides  being 
equivalent  to  the  thing  patented,  the  later  machine  accom- 
plishes some  other  advantage  bej'ond  that  effected  by  the 
patent  machine.  The  new  machine  is  still  an  infringement, 
so  far  as  it  covers  the  object  of  the  patent.  For  example  : 
The  defendant,  for  the  purpose  of  giving  signals  by  tele- 
graph, uses  the  earth  for  effecting  a  return  circuit ;  the 
plaintiffs  having  a  patent  for  giving  signals  by  means  of 
electric  currents  transmitted  through  metallic  currents.  The 
machiner}",  aside  from  the  return  circuit,  used  by  the  de- 
fendant is  the  same  as  that  covered  by  the  plaintiff's 
patent,  and  is  used  without  Hcense.  The  defendant  is 
liable,  though  the  use  of  the  earth  for  effecting  a  return 
circuit  is  an  improvement  in  the  art  of  telegraphing.^ 

Where,  however,  the  means  emplo3'ed  in  the  later  ma- 
chine are  different,  not  merely  in  form,  but  in  substance, 
and  consist  in  combinations  differing  in  substance,  there  is 
no  infringement,  though  the  object  be  to  produce  the  same 
result.  For  example  :  The  defendant  constructs  a  machine 
for  obtaining  a  current  of  air  between  the  grinding  surfaces 
of  mill-stones,  hy  means  of  a  rotating  vane,  for  effecting 
which  the  plaintiff  also  has  a  machine,  protected  by  patent. 
The  plan  of  the  defendant  is  to  remove  from  the  centre  of 
both  stones  a  large  circular  portion,  and  in  this  space,  op- 

1  lb. ;  Gray  v.  James,  Peters,  C.  C.  394. 

2  Curtis,  Patents,  §  330. 

»  Electric  Tel.  Co.  v.  Brett,  10  Com.  B.  838. 


§  2.]  INFRINGEMENT   OF  PATENTS,  ETC.  209 

posite  the  opening  between  the  two  stones,  to  place  a  fan, 
b}^  the  rapid  rotation  of  which  a  centrifugal  motion  is 
given  to  the  air,  driving  it  between  the  stones.  The  plan 
of  the  plaintiff  consists  of  a  portable  ventilating  machine, 
blowing  by  a  screw  vane,  which  causes  a  current  of  air 
parallel  to  the  axis  of  the  vane,  being  attached  externally 
to  the  eye  of  the  upper  mill-stone ;  and  the  screw  vane 
being  thus  set  in  rapid  motion,  the  air  is  forced  through 
the  e^'c  into  the  centre  of  the  stones,  and  so  finds  its  wa}'' 
out  again.  The  defendant's  machine  is  not  an  infringe- 
ment upon  the  plaintiff's.^ 

To  substitute  in  place  of  some  one  element  in  a  com- 
position of  patented  matter  a  mere  known  equivalent  is  an 
infringement,  because,  though  the  patentee  may  not  have 
expressly  mentioned  such  equivalent  in  his  claim,  he  is 
understood  to  have  included  it,  and  in  contemplation  of 
law  he  has  included  it.  However,  if  he  should  confine 
himself  to  the  specific  equivalents  mentioned  in  his  claim 
for  the  patent,  by  excluding  all  others,  the  case  will  be 
different,  and  there  will  be  no  infringement  in  the  use  of 
any  of  such  other  equivalents.^ 

With  regard  to  patents  for  designs,  the  patent  acts  are 
intended  to  give  encouragement  to  the  decorative  arts. 
They  contemplate  not  so  much  practical  utility  as  appear- 
ance. It  is  the  appearance  itself  which  makes  the  article 
salable,  and  the  mode  in  which  these  appearances  are  pro- 
duced has  little,  if  any  thing,  to  do  with  giving  increased 
salableness  to  the  article.  The  appearance,  then,  fur- 
nishes the  test  of  identity  of  design.  Mere  difierence  of 
lines  in  the  drawing  or  sketch,  a  greater  or  less  number  of 
lines,  or  slight  variances  in  configuration,  if  insufficient  to 
change  the  effect  upon  the  eye  of  the  ordinary  obsei-ver, 
will  not  destroy  the  substantial  identity.     An  engraving 

1  Bovill  V.  Pimm,  11  Ex.  718. 

2  Byam  v.  Farr,  1  Curtis,  C.  C.  260. 

14 


210  DUTIES  OF  INDIVIDUALS  INTER  SE.     [Ckvp  X. 

which  has  many  lines  may  present  to  the  ordinary  eye  the 
same  picture,  and  to  the  mind  the  same  idea,  as  another 
with  fewer  Hnes.  If,  then,  there  be  identity-  of  design  (not 
to  an  expert,  but)  to  the  ordinary'  observer,  there  is  an 
infringement  upon  the  patented  design.  For  example  : 
The  defendant  vends  a  carpet  containing  figures  of  flowers 
arranged  in  wreaths  different  in  fact,  upon  close  obsen'a- 
tion,  from  the  plaintiff's  patented  design  for  wreaths  of 
flowers  upon  carpets ;  the  flowers  on  the  defendant's  car- 
pet being  fewer  in  number  than  those  on  the  plaintiff's, 
and  the  wreaths  being  placed  at  somewhat  wider  distances. 
But  this  difference  would  not  be  detected  except  upon  a 
close  comparison.  The  defendant  is  hable  to  the  plaintiflr 
in  damages.^ 

The  test  in  most,  if  not  in  all,  cases  appears  to  be  whether 
the  supposed  difference  of  construction  or  design  would  be 
sufficient  to  warrant  a  new  patent  for  the  product,  in  the 
presence  of  the  patent  already  in  existence. 

Under  the  statute,  the  mere  making,  without  the  sale  or 
use  of  the  articles  or  object  patented,  is  an  infringement  of 
the  rights  of  the  patentee ;  and  it  follows  that  such  an  act 
may  be  treated  as  a  ground  of  liabilit}*,  though  no  damage 
be  sustained  by  the  patentee.  He  will  be  entitled  to 
recover  nominal  damages  at  least ;  ^  and  perhaps  substan- 
tial damages  should  the  act  be  repeated.^  It  is  equally  a 
ground  of  liability  to  use  an  article  which  is  an  infringe- 
ment of  a  patent,  though  the  party  using  it  did  not  make 
it ;  and  the  same  is  true  of  the  sale  of  such  an  article. 
Each  of  these  acts  is  an  invasion  of  the  patentee's  right : 
it  is  a  breach  of  duty  to  him  ;  and  the  part}'  doing  the  act 
is  liable,  however  innocent  of  any  intention  to  injure  the 
true  patentee. 

»  Gorham  Co.  v.  White,  14  Wall.  611. 

2  Whittemore  v.  Cutter,  1  Gal.  429. 

'  Compare  the  rule  in  trespass  to  land,  ante,  p.  174. 


§  2.]  INFRINGEMENT   OF  PATENTS,  ETC.  211 

There  is  some  question,  however,  of  the  hability  of  a 
partj'  who,  without  license,  makes  a  patented  article  for 
mere  philosophical  experiments  (when  the  article  itself  was 
not  intended  for  such  purposes),  or  for  the  purpose  of 
ascertaining  the  sufficiency  of  the  thing  to  produce  the 
effects  claimed  for  it,  or  when  it  is  made  for  mere  amuse- 
ment, or  as  a  model.  ^  But  the  better  opinion  seems  to  be 
that  the  language  of  the  statutory  prohibition  covers  such 
cases. ^ 

The  unauthorized  sale  of  a  patented  machine,  to  consti- 
tute an  infringement,  must  be  a  sale,  not  of  the  materials 
of  a  machine,  either  separate  or  combined,  but  of  a  com- 
plete machine,  with  the  right,  expressed  or  implied,  of 
using  the  same  in  the  manner  secured  by  the  patent.  It 
must  be  a  tortious  sale,  it  has  been  said,  not  for  the  pur- 
pose merely  of  depriving  the  owner  of  the  materials,  but 
of  the  use  and  benefit  of  his  patent,  —  a  point,  however, 
of  some  doubt,  as  has  ah'cad}'  been  obser\'ed.  The  sale  of 
the  materials  merely,  cannot,  it  is  clear,  amount  to  an  in- 
fringement. For  example  :  The  defendant,  a  deputy  sheriff, 
having  an  execution  against  the  plaintiffs,  levies  upon  and 
sells  the  materials  of  tlirce  patented  machines,  of  which 
the  plaintiffs  are  owners,  the  materials  being  at  the  time 
complete  and  fit  for  operation  as  machines.  The  pur- 
chaser has  not  put  any  of  the  machines  into  operation  ;  nor 
is  the  sale  made  with  intent  that  he  should  do  so.  This  is 
not  a  breach  of  dutj'  to  the  plaintiffs.' 

The  sale  or  use  of  the  product  of  a  patented  machine 
is  no  violation  of  the  exclusive  right  to  use,  construct,  or 
sell  the  machine  itself;  and  the  patent  for  a  discover}-  of  a 
new  and  improved  process,  b}'  which  an}'  product  or  man- 

'  See  Whittemore  v.  Cutter,  supra ;  Sawin  v.  Guild,  1  Gal.  485 ; 
Jones  V.  Pearce,  Webs.  Pat.  Cas.  125. 

•i  Watson  V.  Bladen,  4  Wash.  583;  Curtis,  Patents,  §  291. 
3  Sawin  v.  Guild,  1  Gal.  485, 


212  DUTIES   OF  INDIVIDUALS  INTER  SE.     [Chap.  X 

ufacture  before  known  in  commerce  may  be  made  in  a  bet- 
ter and  cheaper  manner,  grants  nothing  but  the  exchisive 
right  to  use  the  process.  Where  a  known  manufacture  or 
product  is  in  the  market,  purchasers  are  not  bound  to  in- 
quire whether  it  was  made  on  a  patented  machine  or  by  a 
patented  process.  But,  if  the  patentee  be  the  inventor  or 
discoverer  of  a  new  manufacture  or  composition  of  matter 
not  known  or  used  b}'  others  before  his  discover}^  or  inven- 
tion, his  franchise  or  right  to  use  and  vend  to  others  to  be 
used  is  the  new  composition  or  substance  itself.  The  pro- 
duct and  the  process,  in  such  a  case,  constitute  one  dis- 
cover}^, the  exclusive  right  to  make,  use,  or  vend  which  is 
secured  to  the  patentee.  For  example  :  The  defendants, 
a  railroad  company,  use,  without  license  of  the  plaintiff', 
a  certain  article  called  vulcanized  India-rubber  in  their  car- 
springs,  for  the  manufacture  of  which  substance  the  plain- 
tiff has  a  valid  patent ;  his  specification,  though  describing 
primaril}'  a  process,  still  showing  that  the  purpose  and  merit 
of  the  process  was  the  production  of  a  valuable  fabric. 
The  plaintiff  has  a  patent  in  the  article  itself,  and  the  act 
of  the  defendants  is  a  breach  of  duty  to  him.^ 

Finall}',  the  Revised  Statutes  of  the  United  States  pro- 
vide that  every  person  who,  in  an}'  manner,  marks  upon  any 
thing  made,  used,  or  sold  by  him  for  which  he  has  not  ob- 
tained a  patent,  the  name  or  an}^  imitation  of  the  name  of 
any  person  who  has  obtained  a  patent  therefor,  without  the 
consent  of  such  patentee,  or  his  assigns  or  legal  represent- 
atives ;  or  who,  in  any  manner,  marks  upon  or  affixes  to 
an}'^  such  patented  article  the  word  "patent"  or  "pa- 
tentee," or  the  words  "  letters-patent,"  or  any  word  of  like 
import,  with  intent  to  imitate  or  counterfeit  the  mark  or 
device  of  the  patentee,  without  having  the  license  or  con- 
sent of  such  patentee  or  his  assigns  or  legal  representa- 
tives ;  or  who,  in  any  manner,  marks  upon  or  affixes  to 

1  Goodyear  v.  Railroad,  2  Wall.  C.  C.  356. 


I 


§  3. J  INFRINGEMENT   OF  PATENTS,  ETC.  213 

any  unpatented  article  the  word  "patent,"  or  any  word 
importing  tliat  tlie  same  is  patented,  for  tlie  purpose  of 
deceiving  the  pubUc,  shall  be  liable  for  every  such  offence, 
to  a  penalty  of  not  less  than  one  hundred  dollars,  with 
costs  ;  one-half  of  said  penalty-  to  the  person  who  shall 
sue  for  the  same,  and  the  other  to  the  use  of  the  United 
States,  to  be  recovered  b}'  suit  in  any  district  court  of  the 
United  States  witliin  whose  jurisdiction  such  offence  may 
have  been  committed.^ 

§  3.  Of  what  constitutes  Infringement  of  Copyright. 

The  Revised  Statutes  of  the  United  States  grant  to  any 
citizen  of  the  United  States  or  resident  therein,  wlio  shall 
be  the  author,  inventor,  designer,  or  proprietor  of  any 
book,  map,  chart,  dramatic  or  musical  composition,  en- 
graving, cut,  print,  or  photograph,  or  negative  thereof,  or 
of  a  painting,  drawing,  chromo,  statue,  statuar}-,  and  of 
models  or  designs  intended  to  be  perfected  as  works  of  the 
fine  arts,  and  the  executors,  administrators,  or  assigns  of 
an}'  such  person,  who  complies  with  certain  preliminary 
requirements,  the  sole  liberty  of  printing,  reprinting,  pub- 
lishing, completing,  copying,  executing,  finisliing,  and 
vending  the  same  ;  and,  in  the  case  of  a  dramatic  compo- 
sition, of  publicly  performing  or  representing  it,  or  caus- 
ing it  to  be  performed  or  represented  b}'  others ;  and  to 
authors  the  privilege  of  reserving  the  right  to  dramatize 
or  to  translate  their  own  works. ^  The  cop3'right  is  to  be 
good  for  twenty-eight  j'^ears,  with  the  right  of  renewal  for 
fourteen  years  more.'  And  an}'  person  who,  without  con- 
sent of  the  owner  of  the  cop3Tight,  obtained  in  writing 
signed  bj'  two  or  more  witnesses,  shall  print,  publish,  or 
import,  an}'  book,  or  knowing  the  same  to  be  so  printed, 
published,  or  imported,  shall  sell  or  expose  to  sale  any 

1  Rev.  Sts.  §  4901. 

2  Rev.  Sts.  §  4052.  »  lb.  §§  4953,  4954. 


214  DUTIES  OF  INDIVIDUALS  INTER  SE.     [Chap.  X. 

copy  of  such  book,  shall  forfeit  every  copy  thereof,  and  be 
liable  in  damages  for  the  act.^ 

To  the  author  of  copyrighted  matter  thus  belongs  the 
exclusive  right  to  take  all  the  profits  of  publication  which 
the  sale  of  the  cop3'righted  matter  may  produce.  And  the 
author's  exclusive  right  extends  to  the  whole  copy,  and,  in 
a  sense,  to  everj^  pai-t  of  it.  It  follows  that  an  infringe- 
ment of  a  man's  copyright  may  be  committed  (1)  by  re- 
printing the  whole  copy,  verbatim;  (2)  by  reprinting, 
verbatim,  a  part  of  it ;  (3)  by  imitating  the  whole  or  a  part, 
or  by  reproducing  the  whole  or  a  part  with  colorable  alter- 
ations or  disguises,  intended  to  give  it  the  character  of  a 
new  work ;  (4)  by  reproducing  the  whole  or  a  part  under 
an  abridged  form.^ 

With  regard  to  each  of  these  forms  of  infringement,  it 
is  to  be  observed  that  the  question  of  intention  does  not 
directly  enter  into  the  determination  of  the  question  of 
piracy.  The  exclusive  privilege  which  the  law  secures  to 
authors  may  be  equally  violated  whether  the  work  com- 
plained of  has  been  published  with  or  without  the  ammvs 
fiirandi.  The  fact  that  a  party  has  honestl}'  mistaken  the 
extent  of  his  right  to  avail  himself  of  the  works  of  others 
will  not  excuse  him  from  liability.^ 

Piracies  of  the  nature  of  those  mentioned  under  the  first 
head  are  seldom  committed,  and  they  may  be  dismissed  with 
the  observation  that  it  matters  not  how  much  other  matter, 
or  how  valuable  the  same,  ma}^  be  incorporated  with  the  re- 
print of  the  copyrighted  matter.  The  act  is  an  infringe- 
ment, though  the  public  might  derive  great  benefit  from  the 
superior  value  of  the  work. 

Piracies  of  the  second  class  are  more  difficult  to  deal 
with.  The  quantity  of  matter  cannot  be  a  true  criterion 
of  the  commission  of  an  infringement,  since  only  a  small 

»  Kcv.  Sts.  §  4964.  2  Curtis,  Copyrights,  238. 

*  lb. ;  Emerson  v.  Da  vies,  3  Story,  768. 


§  3.]  INFRINGEMENT   OF  PATENTS,  ETC.  215 

liortiou  of  a  work  may  be  pirated,  and  this  the  most  impor- 
tant part  of  the  work,  or  a  very  important  part  of  it.  For 
example  :  The  defendant  makes  use,  in  a  pubhshed  volume, 
of  judicial  decisions  of  the  head-notes,  or  marginal  notes, 
of  the  plaintilf  in  a  series  of  volumes  of  reports,  of  which 
the  plaintiff  owns  the  copyright.  This  is  an  infringement 
of  the  plaintiff's  rights,  for  which  the  defendant  is  liable ; 
though  such  notes  constitute  but  a  small  part  of  the  plain- 
tiff's work.^ 

It  may  be  doubtful  if  any  part  of  the  work  of  another 
may  be  taken  animo  furandi.^  How  much  may  be  hon- 
estly taken,  that  is,  taken  without  any  purpose  of  sup- 
planting the  copyright  work,  is  the  difficult  question.  It  is 
clear  that,  if  so  much  be  taken  as  to  sensibly  diminish  the 
value  of  the  original,  an  infringement  has  been  committed.* 
It  is  not  onl}'  quantity,  but  value  also,  that  must  be  taken 
into  the  consideration.* 

In  deciding  questions  of  this  sort,  it  has  been  observed 
that  the  nature  and  objects  of  the  selections  made  must  be 
taken  into  account,  the  quantity  and  value  of  the  materials 
used,  and  the  extent  to  which  the  use  may  prejudice  the 
sale  or  diminish  the  profits,  or  supersede  the  objects  of 
the  original  work.^  Many  mixed  ingredients  enter  into 
the  discussion  of  such  questions.  In  some  cases,  a  consid- 
erable portion  of  the  materials  of  the  original  work  ma}^ 
be  fused  into  another  work,  so  as  to  be  distinguishable  in 
the  mass  of  the  latter  ;  but  yet  the  latter,  having  a  distinct 
purpose  from  the  copyrighted  book,  may  not  be  an  in- 

1  See  Wheaton  v.  Peters,  8  Peters,  591.  Also  Saunders  v.  Smith, 
3  Mylne  &  C.  711;  Sweet  v.  Sweet,  1  Jur.  212;  Sweet  v.  Benning, 
16  Com.  B.  459. 

2  Mr.  Godson  tliinks  it  cannot.  Patents  and  Copyrights,  216. 
Mr.  Curtis,  contra.     Copyrights,  251,  note. 

8  Bramwell  v.  Halcomb,  3  Mylne  &  C.  737  ;  Saunders  v.  Smith,  lb. 
711.  *  lb. 

6  Folsom  V.  Marsh,  2  Story,  100. 


216  DUTIES  OF  INDIVIDUALS  INTER  SE.     [Chaf.  X 

fringement.  In  other  cases  the  same  materials  may  be 
used  as  a  distinct  feature  of  excellence,  and  constitute  the 
chief  value  of  the  new  work,  and  then  the  latter  will  be  an 
infringement.^  Be  the  quantity',  then,  large  or  small,  if 
the  part  extracted  furnish  a  substitute  for  the  work  from 
which  it  is  taken,  so  as  to  work  an  appreciable  injury, 
there  is  an  actionable  Adolation  of  copj'right.^ 

A  person  is  entitled  to  make  a  reasonable  amount  of 
quotation  from  a  cop3'righted  production  by  way  of  review 
or  criticism ;  but,  under  the  pretence  of  review,  no  one 
has  the  right  to  publish  a  material  part  of  the  author's 
work ;  ^  that  is,  such  a  part  as  might  have  a  sensible 
effect  in  superseding  the  original,*  —  not  perhaps  as  a 
whole,  but  quoad  hoc.^ 

As  to  imitations  of  the  whole  or  part  of  a  copyrighted 
work,  the  difficulty  of  determining  the  question  of  piracy 
is  scarcely  less.  There  ma}-  be  Hkeness  without  copying  ; 
and,  though  the  copyrighted  work  may  have  suggested  the 
new  one,  the  imitation  may  not  be  close  enough  to  amount 
to  infringement.  The  question,  however,  is,  whether  the 
variation  be  substantial  or  merely'  colorable.®  For  exam- 
ple :  The  defendant  is  alleged  to  have  infringed  the  plain- 
tiff's copyright  in  an  Arithmetic  hy  imitating  its  plan  and 
contents.  The  test  of  the  defendant's  liability  is  whether 
he  has  in  fact  used  the  plan,  arrangements,  and  illustra- 
tions of  the  plaintiff  as  the  model  of  his  own  work,  with 
colorable  alterations  and  variations,  only  to  disguise  the 
use  thereof,  or  whether  the  defendant's  work  is  the  result 
of  his  own  labor,  skill,  and  use  of  common  materials  and 
common  sources  of  knowledge,  open  to  all  men,  the  resem- 

1  Folsom  V.  Marsli,  2  Story,  100. 

2  Curtis,  Copyright,  245 ;  Folsom  v.  Marsh,  2  Story,  100. 

3  See  Wilkins  v.  Aiken,  17  Ves.  422,  424. 

*  Roworth  V.  Wilkes,  1  Campb.  94.  6  Curtis,  246,  note. 

*'  Trusler  v.  Murray,  1  East,  363,  note;  Emerson  v.  Davies,  3 
Story,  768,  793. 


§  3]  EST'RINGEMENT   OF  PATENTS,  ETC.  217 

blances  being  accidental,  or  arising  from  the  nature  of  the 
work  ;  —  whether,  in  short,  the  defendant's  work  be  quoad 
hoc  a  servile  or  evasive  imitation  of  the  plaintiff's  work, 
or  a  bona  fide  original  composition  from  other  common  or 
original  sources.'^ 

In  cases  of  this  kind,  it  is  not  enough  to  establish  a 
violation  of  dut}'  that  some  parts  or  pages  of  the  later 
work  bear  resemblances  in  methods,  details,  and  illustra- 
tions to  the  cop3'righted  work.  It  must  fiu"ther  appear  that 
the  resemblances  in  those  parts  or  pages  are  so  close,  so 
full,  so  uniform,  and  so  striking,  as  fairly  to  lead  to  the 
conclusion  that  the  one  is  a  substantial  coj^y  of  the  other, 
or  is  mainly  borrowed  from  it.^ 

It  is  to  be  observed,  therefore,  that  it  does  not  follow 
that  because  the  same  sources  of  information  are  open  to 
all  persons,  and  b3'  the  exercise  of  their  own  skill,  talent, 
or  industry  they  could,  from  all  of  these  sources,  have 
produced  a  similar  work,  one  party  may,  at  second 
hand,  without  an}'  exercise  of  skill,  talent,  or  industry-, 
borrow  from  another  all  the  materials  which  have  been 
accumulated  and  combined  by  him.  For  example :  The 
defendant  copies  a  map  of  a  town  from  the  plaintiff's 
copyrighted  map,  the  latter  being  made  by  actual  surveys 
of  the  region.  This  is  an  infringement  of  the  plaintiff's 
copyright,  though  the  means  used  b}'  the  plaintiff  for 
making  his  map  were  open  to  all  persons  alike. ^ 

The  next  case  is  that  of  abridgmeuts  ;  the  rule  of  law  in 
England  as  to  which  is  said  to  be,  that  a  fair  abridgment, 
when  the  understanding  is  employed  in  retrenching  unnec- 
essary circumstances,  is  not  a  piracy  of  the  original  work. 
Such  an  abridgment  is  allowable  as  constituting  a  new 
work.* 

1  Emerson  v.  Davies,  supra.  2  n,, 

8  See  Gray  v.  Russell,  1  Story,  11,  18. 
*  Copinger,  Copyrights,  101. 


218  DUTIES  OF  INDIVIDUALS  INTER  SE.     [Chap.  X 

It  is  not  clear  what  the  American  law  upon  this  point 
is.  It  is  certain,  however,  that  to  justify  an  abridgment 
of  a  copyrighted  work,  the  case  must  be  one  of  a  bona  fide 
character,  and  not  a  mere  evasive  reproduction  of  the 
original,  by  the  omission  of  some  unimportant  parts.  It 
is  also  a  matter  for  consideration  whether  the  new  work 
will  prejudice  or  supersede  the  old,  whether  it  will  be 
adapted  to  the  same  class  of  readers,  and  often  other 
things  of  the  same  sort  must  be  weighed.  In  many  cases, 
the  question  may  turn  upon  a  consideration  not  so  much 
of  the  quantity  used  as  of  the  value  of  the  selected  mate- 
rials,^ as  has  been  observed  in  another  connection. 

The  true  question  in  cases  of  this  kind,  indeed,  appears 
to  be  whether  there  has  been  a  legitimate  use  of  the  copy- 
right publication,  in  the  fan-  exercise  of  a  mental  opera- 
tion, deserving  the  character  of  a  new  work.  If  there  has 
been,  though  it  may  be  prejudicial  to  the  original  author, 
it  is  not  deemed  to  be  an  invasion  of  his  rights.  If  there 
has  not  been,  then  it  is  treated  as  a  mere  colorable  cur- 
tailment of  the  original  work,  and  an  evasion  of  the 
copyright.^  It  cannot  be  affirmed,  however,  that  there 
is  any  certain  and  well-defined  rule  of  law  in  the  United 
States  upon  this  subject. 

Digests  of  larger  worlvs  fall  under  the  head  of  abridg- 
ments. Such  publications  are  in  their  nature  original. 
The  compiler  intends  to  make  a  new  use  of  them  not 
intended  by  the  original  author.  But  such  works  must  be 
real  digests,  and  not  mere  colorable  reproductions  of  the 
original,  in  whole  or  in  an  essential  part.  The  work  be- 
stowed upon  a  digest  must  be  something  moi'e  than  the 
labor  of  the  pen  and  the  arrangement  of  extracts  :  it  must 
be  mental  labor,  designed  to  produce  a  new  work,  the 


1  Gray  v.  Russell,  1  Story,  19. 

2  2  Story,  Equity,  §  939.    See,  also.  Story  v.  Ilolcombe,  4  McLean, 


306. 


§  3.]  INFRINGEMENT   OF  FATENTS,  ETC.  219 

object  of  which  must  clearl}"  appear  to  be  consistent  with 
the  rights  of  the  author  of  tlie  original  work.^ 

It  is  not  an  infringeiBcnt  of  a  copyright,  by  the  American 
law,  to  translate,  without  hcense  of  the  author,  a  copy- 
righted work  into  a  foreign  language  ;  ^  unless  the  author 
has  reserved  the  right  of  translation.  And  this  is  true  in 
America,  though  the  author  has  himself  procured  and  copy- 
righted a  translation  of  his  work  into  the  same  language 
with  the  translation  complained  of.  For  example :  The 
defendant  translates  into  German  a  book  entitled  "Uncle 
Tom's  Cabin, "  and  publishes  his  translation  here ;  the 
plaintiff,  the  author,  having  previously  procured  her  work 
to  be  translated  into  that  language,  and  having  procured  a 
copyright  upon  her  translation.  The  defendant  has  vio- 
lated no  duty  to  the  plaintiff.^ 

Finally,  the  Revised  Statutes  of  the  United  States  pro- 
vide that  every  person  who  shall  print  or  publish  any 
manuscript  whatever,  without  the  consent  of  the  author  or 
proprietor  first  obtained,  if  such  author  or  proprietor  is  a 
citizen  of  the  United  States,  or  resident  therein,  shall  be 
liable  to  the  author  or  proprietor  for  all  damages  occasioned 
by  such  injury.'* 

^  See  the  remarks  of  Lord  Lyndliurst  in  D'Almaine  v.  Boosey, 
1  Younge  &  C.  288,  a  case  of  infringement  of  a  copyrighted  musical 
composition. 

2  Stowe  V.  Tliomas,  2  Wall.  C.  C.  547. 

8  Stowe  V.  Thomas,  supra.    See  Shook  v.  Rankin,  6  Biss.  477. 

«  Rev.  Sts.  §  4967. 


220  DUTIES  OF  INDIVIDUALS  INTER   SE.     [Chap.  XI 


CHAPTER  XI. 

VIOLATION  OF  RIGHTS  OF  SUPPORT. 

§    1.     iNTRODrCTORY. 

Statement  of  the  duty.  A  owes  to  B  the  duty  (1)  to  for- 
bear to  remove,  to  B's  detriment,  the  lateral  support  of 
B's  laud,  so  long  as  it  lies  in  its  natural  condition  ;  (2)  to 
forbear  to  remove  negligently,  to  B's  detriment,  the  lateral 
support  of  B's  land  with  the  superincumbent  weight  of 
buildings  or  materials  thereon,  adjacent  to  the  boundary ; 
(3)  to  forbear  to  withdraw,  to  B's  detiiment,  the  subjacent 
support  of  his  premises. 

§  2.    Of  Lateral  Support. 

The  owner  of  land  has  a  right,  as  against  his  neighbor, 
to  what  is  termed  the  lateral  support  of  his  ground.  This 
right  of  lateral  support  is  a  right  of  support  of  the  land  in  its 
natural  condition,  or,  in  case  of  grant  or  prescription,  in 
an  artificial  condition  ;  and  this  right  of  support  of  land  in 
its  natural  condition  is,  prima  facie^  a  right  analogous  to 
the  right  to  make  use  of  a  running  stream  or  of  the  air. 
It  is  not  in  the  nature  of  an  easement,  and  does  not  depend 
upon  prescription  or  grant. ^  But  of  course  a  right  to  re- 
move the  support  may  be  acquired  b^'  grant ;  ^  though  not. 
by  custom  or  prescription,  because  prescription  in  such  a 
case,  it  is  said,  would  be  oppressive  and  unreasonable.* 

1  Bonomi  v.  Backhouse,  El.,  B.  &  E.  646 ;  8.  c.  9  H.  L.  Gas.  503. 

2  Rowbotham  v.  Wilson,  8  H.  L.  Gas.  348. 

8  Hilton  V.  Granville,  5  Q.  B.  701 ;  Wakefield  v.  Buccleugh,  Law 
R.  4  Eq.  613. 


§  2.]  VIOLATION  OF  RIGHTS   OF   SUPFORT.  221 

The  right  of  support  of  the  land  surroniKling  a  man's 
premises  being  then  a  right  of  propert}',  it  follows  that  it 
cannot,  in  the  absence  of  permission,  grant,  or  prescription, 
be  withdrawn  b}'  the  adjoining  occupant  without  an  action- 
able breach  of  dut}'.  For  example  :  The  defendant,  owner 
of  premises  adjoining  the  premises  of  the  plaintiff,  which 
are  located  upon  the  side  of  a  declivit}',  excavates  the 
earth  of  his  land  so  closeh*  to  the  boundar}'  between  his 
own  and  the  plaintiff's  property  as  to  cause  the  soil  of  the 
plaintiff's  premises,  of  its  own  natural  weight,  to  slide 
away  into  the  pit.  This  is  a  breach  of  dutj'  to  the  plaintifi', 
for  which  the  defendant  is  liable  in  damages.^ 

Some  doubt  has,  indeed,  been  cast  upon  the  soundness 
of  this  proposition  as  a  general  doctrine  of  law.  It  has 
been  obser\'ed  that,  if  it  were  carried  out  to  its  legitimate 
consequences,  it  would  often  deprive  men  of  the  whole 
beneficial  use  of  their  propertj-.  An  unincumbered  lot  in 
a  cit}',  it  is  said,  would  be  worth  little  or  nothing  to  the 
owner  unless  he  were  allowed  to  dig  in  it  for  the  purpose 
of  building.^  But  the  answer  to  this  would  appear  to  be, 
that  it  would  impose  no  hardship  upon  the  person  desiring 
to  excavate  to  shore  up  the  soil  of  the  adjoining  premises 
so  as  to  prevent  it  from  sinking  into  his  pit.  And  the 
authorities  are  very  generally  in  accord  with  the  rule  which 
governed  the  above-mentioned  example.'' 

The  doctrine,  however,  goes  no  further  than  to  sustain  a 
right  of  action  for  the  sinking  of  land  in  its  natural  condi- 
tion.    The  action  cannot  be  maintained  if  the  sinking  be 

"^  1  Thurston  v.  Hancock,  12  Mass.  220;  s.  c.  Bigelow's  L.  C.  Torts, 
627. 

2  Radcliff  V.  Brooklyn,  4  Corast.  195.  This  was  a  dictum,  and  has 
been  denied  in  2  Wash.  Real  Prop.  331  (3d  ed.),  and  in  Farrand  v. 
Marshall,  21  Barb.  409,414;  McGuire  y.  Grant,  1  Dutch.  356,367. 
See  Foley  v.  Wyeth,  2  Allen,  131. 

8  See  Washburn,  Easements,  542-544  (3d  ed.);  Gale,  Easements, 
336  (4th  ed.). 


222  DUTIES  OF  INDIVIDUALS  TNTEU  SE.     [Chap.  XL 

due  to  a  superincumbent  weight  placed  upon  the  plaintiff's 
premises,  unless  a  right  was  acquired  as  against  the  adjoin- 
ing occupant  by  grant  or  prescription.  For  example  :  The 
defendant  digs  a  gravel  pit  in  his  premises  close  to  the  line 
between  his  own  and  the  plaintiff's  land.  Within  two  feet 
of  the  line,  on  the  plaintiff's  land,  stands  a  brick  house, 
erected  ten  years  before,  and  occupied  by  the  plaintiff.  By 
reason  of  the  defendant's  excavation,  the  premises  being 
located  on  the  side  of  a  hill,  it  becomes  necessary-  for  the 
plaintiff  to  vacate  his  house,  and  to  take  it  down,  to  pre- 
vent it  from  sliding  into  the  defendant's  pit.  The  defend- 
ant is  not  liable,  since  it  was  the  plaintiff's  own  folly  to 
build  so  near  the  line.* 

The  right  to  the  lateral  support  of  buildings  is  therefore 
in  the  nature  of  a  right  of  easement,  which  can  be  acquired 
only  by  grant  or- by  prescription  which  supposes  a  grant. 
But  even  though  a  building  may  have  stood  upon  the  plain- 
tiff's premises  for  the  period  of  prescription,  if  its  walls 
were  improperly  constructed,  so  as  for  this  cause  to  give 
way,  and  not  by  reason  of  the  excavation  alone,  the  plain- 
tiff cannot  recover.^  And  the  same  would  be  true,  if, 
within  the  period  of  prescription,  a  new  story  were  added 
to  the  house,  whereby  the  pressure  was  so  increased  as  to 
cause  the  sinking.* 

On  the  other  hand,  it  is  to  be  observed  that  the  mere 
fact  that  there  were  buildings,  recently  erected,  standing 
upon  the  border  of  the  plaintiff's  land  when  it  sank,  will 
not  prevent  a  recovery  of  damages.  If  the  soil  sank,  not 
on. account  of  the  additional  weiglit,  but  on  account  of  the 
operations  in  the  adjoining  close  (though  they  were  care- 
fully conducted) ,  and  would  have  sunk  had  there  been  no 

*^i  Thurston  v.  Hancock,  swpra ;  Panton  v.  Holland,  19  Johns.  92; 
Lasala  v.  Ilolbrook,  4  Paige,  169. 

2  Kichart  v.  Scott,  7  Watts,  400 ;  Dodd  v.  Holme,  1  Ad.  &  E.  493. 

8  See  Murchie  i;.  Black.  34  Law  J.  C.  P.  337. 


§  2.]  VIOLATION  OF  RIGHTS   OF   SUPPORT.     .        223 

buildings  upon  it,  the  person  sustaining  the  damage  is  enti- 
tled to  redress  to  the  extent  of  his  loss.^  So,  also,  if  the 
operation  in  the  adjoining  land  were  conducted  with  a 
negligent  disregard  to  the  rights  of  the  plaintiff,  and  the 
effect  of  such  negligence  were  the  fall  of  the  plaintiff's  build- 
ing, the  adjoining  occupant  is  liable.^  But  in  the  absence 
of  negligence  in  the  defendant,  if  the  damage  to  the  plain- 
tiff's premises  would  have  been  slight  and  inappreciable 
had  there  been  no  superincumbent  weight  thereon,  he  will 
not  be  entitled  to  recover.' 

The  result  therefore  is,  (1)  that  the  defendant  is  liable 
for  the  damages  suffered  by  his  neighbor  from  the  with- 
drawal of  the  lateral  support  when  that  act,  of  itself,  and 
without  the  fault  of  the  neighbor,  was  the  cause  of  the 
damage,  including  m  the  damage  the  injury  done  to 
sound!}'  built  buildings ;  and  this,  too,  though  the  party  -j— 
making  the  excavation  was  not  guilt}-  of  negligence  in  the"'^'  v,^ 
work.      (2)    He  is  liable  for  all  the  damage  suffered  by  '^ 

withdrawing  the  support  when  he  was  guilty  of  negligence, 
including  in  the  damages  injuries  to  soundly  built  build- 
ings. (3)  He  is  not  liable  if  the  subsidence  was  caused 
by  the  weight  of  buildings,  or  bj'  the  defective  condition 
of  the  same. 

The  right  of  lateral  support  to  contiguous  buildings  is 
somewhat  different,  and  depends  upon  gi-ant,  reservation, 
or  prescription.  Where  buildings  have  been  erected  in  con- 
tiguity b}'  the  same  owner,  and  therefore  require  mutual 
support,  there  is,  either  by  a  presumed  grant  or  by  a  pre- 
sumed reservation,  a  right  to  such  mutual  support  in  favor 
of  the  original  owner  on  a  sale  by  him  of  an}'  of  the  build- 
ings.    As  against  himself,  on  the  other  hand,  there  is  a 

1  Strayan  z;.  Knowles,  6  Hurl.  &  N.  454.  ^-i   '*  '-'  ;  /J/ 

2  See  Charless  v.  Rankin,  22  Mo.  5GG,  574;  Schrieve  v.  Stokea,  8 
B.  Mon.  453,  450 ;  Dodd  v.  Holme,  1  Ad.  &E^_^^,^<^ 

■^  3  Smith  V.  Thackerah,  Law  R.  1  C.  P.  b6i.J 


224  DUTIES  OF  INDIVIDUALS  INTER  SE.     [Chap.  XI. 

presumed  grant  of  the  right  of  support  in  favor  of  the 
purchaser,  which  right  takes  effect  at  once.  And  the 
reservation  in  the  original  owner,  after  one  sale,  of 
the  right  of  support  for  the  adjoining  building,  will  enable 
a  second  purchaser,  on  buying  this  ^.djoining  house,  to 
claim  against  his  neighbor  the  same  right  of  support ; 
since  b}'  the  purchase  he  acquires  all  of  his  vendor's  rights. 
It  follows  also  that  the  same  mutual  dependency'  continues 
after  subsequent  aUenations  by  the  purchasers  from  the 
original  owner,  and  this  regardless  of  the  question  of  time. 
For  example :  The  defendant  constructs  a  drain  under 
his  house  to  connect  with  a  public  sewer,  and  thereb}'^ 
weakens  the  support  of  the  wall  separating  the  defendant's 
house  from  the  plaintiff's,  to  the  injury  of  the  latter's 
house.  The  two  houses  originally  lielonged  to  the  same 
person,  who  had  demised  them  both  for  ninety-nine  years 
to  W.  The  latter  mortgages  both  to  B.,  who  assigns  the 
mortgage  to  H.,  and  H.  conve3's  (under  a  power)  one  of 
the  houses  to  the  plaintiff  in  the  month  of  Jul}',  and  the 
other  to  the  defendant  in  September  following.  The  de- 
fendant's act  in  weakening  the  support  of  the  plaintiff's 
house  is  a  breach  of  legal  dut}',  and  the  defendant  is  liable 
in  damages.^ 

But  the  right  to  such  support  of  buildings  is  not  a 
natural  right ;  and  where  the  adjoining  buildings  were 
erected  by  different  owners  the  right  of  support  can  be 
acquired  in  favor  of  either  of  the  original  owners  (and 
their  successors  in  estate)  only  by  grant  of  the  other  or 
by  prescription.  For  example :  The  defendants  pull 
down  a  house  adjoining  the  plaintiff's,  without  shoring  up 
the  latter,  and  thereby  cause  damage  to  the  plaintiff's 
property.  Tlie  houses  were  built  about  the  same  time, 
but  b}'  different  owners  of  the  soil ;  and  there  is  no  title  to 
support  either  b}'  grant  or  by  prescription,  nor  has  the 

^  1  Kichards  i'.  Rose,  9  Ex.  218.  "^ 


§  2.]  VIOLATION  OF  RIGHTS   OF   SUPPORT.  225 

pulling  clown  been  negligently  done.  The  defendanls  are 
not  liable  ;  at  least  if  the  plaintiff  has  sufficient  notice  of 
the  purpose  of  the  defendants  to  enable  him  to  take  the 
proper  precautions  against  the  damage.^ 

If  there  be  an  intervening  house  or  store  in  the  block, 
between  the  premises  of  the  plaintiff  and  those  of  the 
defendant,  the  pulling  down  of  the  latter's  building  cannot 
be  a  breach  of  duty  to  the  former  in  the  absence  of  some 
special  engagement  between  the  parties,  especially  if  the 
plaintiff's  building  was  already  in  an  unsafe  condition.' 

There  is  said  to  be  no  obligation  by  the  English  law 
resting  upon  the  owner  of  a  house  towards  his  neighbor  in 
the  adjoining  tenement  to  keep  his  house  in  repair  (further 
than  to  prevent  the  same  from  becoming  a  nuisance)  in  a 
lasting  and  substantial  manner.  The  only  duty  is  deemed 
to  be  to  keep  it  in  such  a  state  that  his  neighbor  ma}'  not 
be  injured  by  its  fall.  The  house  m.a.j,  therefore,  be  in  a 
ruinous  condition,  provided  it  be  shored  sufficiently,  or 
the  house  may  be  demolished  altogether,  if  this  can  be 
done  without  injurj'  to  the  adjoining  house. ^ 

If  either  of  the  co-owners  of  a  partj'-wall  should  wish  to 
improve  his  premises  before  the  wall  has  become  ruinous, 
or  incapable  of  further  answering  the  purposes  for  which 
it  was  built,  he  may  underpin  the  foundation,  sink  it 
deeper,  and  increase,  within  the  limits  of  his  own  land, 
the  thickness,  length,  or  height  of  the  wall,  if  he  can  do 
so  without  injury  to  the  building  upon  the  adjoining  close. 
And  to  avoid  such  injury,  he  maj^  (and  perhaps  he  should) 
shore  up  and  support  the  original  wall  for  a  reasonable 
time,  in  order  to  excavate  and  place  a  new  underpinning 
beneath  it.  But  he  cannot  without  consent  interfere  with 
it  in  any  manner  unless  he  can  do  so  without  injury  to  the 

1  Peyton  v.  London,  9  Barn.  &  C.  725. 

2  Solomon  v.  Vintners'  Co.,  4  Hurl.  &  N.  685. 
—  8  Chauntler  v.  Robinson,  4  Ex.  163,  170.  .- 

16 


226  DUTIES  OF  INDIVIDUALS  INTER  SE.     [Chai-.  XL 

adjoining  building.  No  degree  of  care  or  diligence  in  the 
performance  of  the  work  will  relieve  hun  from  liabilit}',  if 
injury  be  done  to  the  adjoining  building  by  making  the 
improvements.  For  example :  The  defendant,  co-owner 
with  the  plaintiff  of  a  party-wall  between  their  premises, 
digs  down  his  cellar  about  eighteen  inches,  underpinning 
the  part3"-wall,  and  lowers  the  floor  of  his  first  story  the 
same  distance.  In  consequence  of  these  operations, 
the  division  wall  settles  several  inches,  carrying  down  the 
plaintiff's  floors,  and  cracking  the  front  and  rear  walls  of 
his  (the  plaintiff's)  building.  The  defendant  is  liable  to 
the  plaintiff  for  the  damage  thus  caused,  though  the  said 
operation  were  carried  on  prudently  and  carefully.^ 

It  follows  that,  if  a  party- wall  rest  upon  an  arch,  the 
legs  of  which  stand  within  the  land  of  the  respective 
owners,  neither  can  remove  one  of  the  legs  to  the  detri- 
ment of  his  neighbor,  without  his  consent.^  On  the  other 
hand,  either  may  run  up  the  wall  to  an}-  height,  provided 
no  damage  be  thereby  done  to  the  other.^ 

The  existence  of  a  right  to  fix  a  beam  or  timber  into  the 
wall  of  a  neighbor's  house  depends  upon  the  situation  of 
the  wall.  If  it  stand  wholly  upon  the  land  of  the  owner, 
it  is  clear  that  no  such  right  can  exist  except  by  gi'aut  or 
prescription.  Any  attempt  b}'  the  adjoining  owner  to  fix 
a  timber  in  the  wall,  without  consent  given,  would  be  a 
trespass,  for  which  an  action  would  lie ;  or  (probably)  it 
could  be  treated  as  a  nuisance  and  abated  accordingly. 
And  a  wall  thus  situated  (the  adjoining  owner  having  ac- 
quired no  right  to  the  enjoyment  of  it)  may  be  altered  or 
removed  at  pleasure,  provided  no  damage  be  thereby  done 
to  the  adjoining  premises. 

1  Eno  i;.  Del  Vecclno,  6  Ducr,  17;  s.  c.  4  Duer,  68. 

2  Partridge  v.  Gilbert,  ^^  N.  Y.  601;  Dowling  v.  Hcmmings,  20 
M(l.  179.  , 

—  3  Matts  V.  Hawkins,  5  Taunt.  20  .-Brooks  v.  Curtis,  50  N.  Y.  639,644 


§  0.1  VIOLATION  OF  RIGHTS   OF   SUPPORT.  227 

If,  however,"  the  wall  be  a  party-wall,  owned  in  severalty 
to  the  centre  thereof,  or  in  common,  by  the  adjoining  own- 
ers, the  case  will  of  course  be  different ;  and  each  will  be 
entitled  to  fix  timbers  into  it,  in  a  prudent  manner,  doing 
no  damage  to  the  wall  or  prejudice  to  the  other  owner. ^ 

Where  the  wall  is  owned  in  severalty  to  the  centre,  it 
would  seem  that  neither  owner  could  extend  his  timbers 
be^'ond  the  centre  of  the  wall.  To  pass  the  line  of  divi- 
sion without  permission  would  be,  apparently',  as  much  a 
trespass  as  to  make  an  entrj'  upon  the  soil  without  per- 
mission. 

On  the  other  hand,  the  case  would  probabl}'  be  different 
if  the  wall  were  owned  in  common  by  the  adjoining  pro- 
prietors, since,  as  has  elsewhere  been  observed,'^  tenants  iu 
common  are  each  seized  of  the  whole  common  property. 
And  it  follows  that  such  a  wall  ma}'  also  be  taken  down  bj' 
either  owner,  for  the  purpose  of  rebuilding,  if  necessar}'.' 

§  3.  Of  Subjacent  Support. 

While  ordinarily  a  man's  title  to  land  includes  the  under- 
lying soil  to  an  indefinite  extent  towards  the  centre  of  the 
earth,  it  Is  settled  law  that  there  ma}-  be  two  freeholds  in 
the  same  body  of  earth  measured  superficial!}'  and  perpen- 
dicularly down  towards  the  earth's  centre ;  to  wit,  a  free- 
hold in  the  surface  soil  and  enough  l^ing  beneath  it  to 
support  it,  and  a  freehold  in  underlying  strata,  with  a  right 
of  access  to  the  same,  to  work  therein  and  remove  the 
contents.* 

This  right  to  the  subjacent  strata,  however,  as  is  above 
intimated,  is  not  unqualified ;  on  the  contrar}',  it  must  be 
exercised  in  such  a  wa}'  as  not  to  impair  the  support  of  the 

1  See  Bigelow's  L.  C.  Torts,  555. 

2  Ante,  p.  109.  »  Stedman  v.  Smith,  8  El.  &  B.  1. 

*  Washburn,  Easements,  588  (3(1  ed.)  ;*IIuniphrics  v.  Brogdcn,  12 
Q.  B.  739;  8.  c.  Bigelow's  L.  C.  Torts,  53G;%\Vilkinson  v.  Proud,  11 
Mees.  &  W.  33. 


228  DUTIES  OF  INDIVIDUALS   INTER  BE.     [Chap.  XL 

surface  freehold.  And  if  that  freehold,  in  its  natural  con- 
dition, be  deprived  of  its  necessary  support  by  under- 
ground excavation,  the  party  committing  the  act  is  liable, 
however  carefully  he  may  have  conducted  the  work  in  his 
own  freehold.  For  example  :  The  defendants,  a  coal  min- 
ing company,  lessees  of  a  third  person  of  coal  mines  un- 
derl3'ing  the  plaintiff's  close,  upon  which  there  are  no 
buildings,  in  the  careful  and  usual  manner  of  working  the 
mine  so  weaken  the  subjacent  support  to  the  plaintiff's 
close,  without  his  consent,  as  to  cause  the  same  to  sink 
and  suffer  injury.  The  defendants  are  liable  for  the  damage 
sustained.^ 

It  is  also  laid  down  that  there  is  a  difference  between 
rights  of  support  against  a  subjacent  owner  of  land  and  an 
adjacent  owner ;  that  is,  between  underlpng  and  lateral 
support,  in  respect  of  erections  upon  the  dominant  tene- 
ment. The  right  to  the  support  of  buildings,  as  has  been 
observed,  depends,  generally,  in  the  absence  of  gi-ant  and 
reservation,  upon  the  question  whether  the}'  are  ancient  or 
not,  that  is,  whether  a  prescriptive  right  has  been  acquired 
to  the  lateral  support.  But,  as  against  an  underlying  free- 
hold, the  owner  of  the  surface  freehold  is  entitled  to  the 
support  of  all  buildings  which  were  erected,  however  re- 
cently, before  the  title  of  the  lower  owner  began  and  pos- 
session was  taken.  For  example :  The  defendants  are 
lessees  and  workers  of  a  mine  under  the  plaintiff's  free- 
hold. The  plaintiff,  at  various  times  before  the  defendants 
began  their  works,  and  within  twenty'  years  thereof,  erects 
buildings  above  the  mines  on  ground  honej'combed  bj""  the 
workings  of  another  company  some  years  before.  The 
workings  by  the  defendants  increase  the  defective  nature 
of  the  ground,  and  a  subsidence  of  the  surface  follows ; 
and  from  this  cause  and  the  fact  that  the  plaintiff's  build- 
ings were  not  constructed  with  sufficient  sohdity,  consider- 

*^  *  Humphries  v.  Brogden,  supra. 


§  3.]  VIOLATION  OF  RIGHTS  OF  SUPPORT.  229 

ing  the  state  of  the  gi'ound,  damage  ensues  to  the  plaintiff's 
buildings.  The  defendants  have  violated  their  duty  to  the 
plaintiff  by  not  shoring  up  and  supporting  the  overlying 
tenement.^ 

The  su2)port  required,  in  the  absence  of  grant  or  pre- 
scription, appears,  however,  to  be  merely  a  reasonable 
support ;  and  this  has  been  suggested  to  mean  a  support 
sufficient  for  all  the  ordinary  and  useful  purposes  of  life, 
among  them  to  houses  for  providing  dwellings.  AVhether, 
in  the  absence  of  consent,  the  owner  of  the  upper  tenement 
could  require  the  owner  or  occupant  of  the  lower  to  support 
structures  of  extraordinary  weight,  such  as  a  cathedral,  is 
doubtful.  The  true  view  seems  to  be  that  when  the  owner 
of  the  whole  property  severs  it  by  a  conveyance  either  of 
the  surface,  reserving  the  mines,  or  of  the  mines,  reserv- 
ing the  surface,  he  intends,  unless  the  contrary  be  made  to 
appear  by  express  words,  that  the  land  shall  be  supported, 
not  merelj'  in  its  original  condition,  but  in  a  condition  suit- 
able to  any  of  the  ordinary-  uses  necessary  or  incidental  to 
its  reasonable  enjojTnent.^ 

The  right  of  support  of  upper  tenements  of  houses  owned 
by  different  persons  is  analogous.  This  subject,  however, 
does  not  appear  to  have  engaged  the  attention  of  the 
courts.  It  seems  but  reasonable  that  the  occupant  of  the 
lower  tenement  should  be  required  to  abstain  from  all  acts 
which  would  impair  the  support  of  his  neighbor  above  him, 
without  properly  guarding  against  a  subsidence  of  the  upper 
tenement. 

1  Richards  v.  Jenkins,  18  Law  T.  n.  8.  437.  Of  course,  if  the 
building  would  have  fallen  without  the  act  of  the  defendants,  they 
would  not  be  liable  for  the  damage  to  them. 

-  Richards  v.  Jenkins,  supra.  In  this  case,  however,  Mr.  Baron 
Channel  inclined  to  think  that,  if  the  buildings  were  erected  after  the 
defendants  took  possession,  the  period  of  prescription  should  elapse 
before  a  right  to  their  support  could  be  acquired. 


230  DUTIES  OF  INDIVIDUALS   INTER   SE.   [Chap.  XK 


CHAPTER  Xn. 

VIOLATION  OF   WATER  RIGHTS. 

§  1.  Introductory. 

Statement  of  the  duty.  A  owes  to  B  the  duty  (1)  to  for- 
bear to  obstruct  or  divert  the  flow  of  waters  running  in 
known,  defined  channels  by  any  unusual  or  unreasonable 
use  or  works,  to  the  detriment  of  B  ;  (2)  to  forbear  to 
pollute  the  waters  of  a  stream  running  in  a  known,  defined 
channel,  to  the  detriment  of  B,  without  legislative  au- 
thority;  and  (3),  having  legislative  authority  in  the  last 
case,  to  forbear  to  be  guilty  of  an  abuse  thereof. 

§  2.  Of  Usufruct  and  Reasonable  Use  of  Streams. 

In  regard  to  surface  water,  running  in  defined  channels, 
the  rule  of  law  is  that  riparian  proprietors  have  no  abso- 
lute right  to  the  water  of  the  streams  flowing  by  them, 
but  merely  the  usufruct  thereof.  They  are  entitled  to  make 
a  proper  use  of  the  water ;  and  in  no  case,  b}'  the  weight 
of  authorit}',  is  a  party  liable  to  a  lower  land-owner  for 
abstracting  water,  if  actual  damage  has  not  been  done  to 
him.^  For  example  :  The  defendants,  a  railroad  compan}', 
pursuant  to  a  warranty  deed  from  C,  a  riparian  owner 
above  the  plaintiff,  erect  a  dam  across  a  brook  running 
through  the  plaiutift''s  land,  and  construct  a  reservoir  upon 

1  Elliot  V.  Fitchburg  R.  Co.,  10  Gush.  191 ;  s.  c.  Bigclow's  L.  C. 
Torts,  609;  Seeley  v.  Brush,  35  Conn.  419;  Chatfield  v.  Wilson,  31 
Vt.  358 ;  Gerrish  v.  New  Market  Manuf.  Co.,  30  N.  H.  478,  483;  Dill- 
ing  V.  Murray,  G  Ind.  324 ;  Wood  v.  Wand,  3  Ex.  748,  781 ;  Embrey 
V.  Owen,  6  Ex.  353. 


§  2.]  VIOLATION  OF   WATER   RIGHTS.  231 

the  stream,  and  insert  a  lead  pipe  therein,  by  means  of 
which  they  have  used  and  constantly  taken  water  from  the 
reservoir  to  their  depot  at  S.,  and  used  the  same  for  sup- 
plying theii'  locomotive  steam-engines  with  water,  and  for 
similar  purposes.  The  place  of  the  water  thus  abstracted 
is  made  good  b^*  other  water  let  into  the  brook  by  the 
defendant's  grantor ;  and  the  plaintiff  is  unal)le  to  prove 
any  damage  b}'  reason  of  the  diversion  of  water  to  the  de- 
fendants' depot.  The  defendants  have  violated  no  duty  to 
the  plaintiff.^ 

There  have,  however,  been  expressions  by  the  courts, 
and  one  or  two  decisions,  to  the  effect  that  the  right  to  the 
use  of  a  running  stream  is  something  more  than  a  right  of 
usufruct,  and  is  in  fact  absolute,  like  the  right  to  the  en- 
jojment  of  land ;  so  that  an}'  diminution  of  the  water  by 
an  upper  proprietor  is  deemed  actionable  if  he  have  not  a 
right  bj'  gi-ant  of  the  lower  proprietor,  or  b}'  prescription, 
just  as  an  entr}'  upon  land  without  license  is  actionable. - 

The  true  principle,  however,  is  that  the  lower  riparian 
owner  has,  as  against  the  upper  proprietor,  merel}'  a  usu- 
fruct, and  not  an  absolute  right  to  the  water,  however  long  he 
may  have  been  in  the  enjo^'ment ;  and,  this  being  so,  there 
can  be  no  infraction  of  the  right  b}-  any  abstraction  of 
water  which  does  not  sensibly-  and  injuriousl}'  afiect  its 
volume.  Without  such  an  act,  the  usufruct  is  not  inter- 
fered with,  and  the  right  of  the  lower  proprietor  has  not 
been  encroached  upon. 

In  the  language  of  judicial  authority,  the  right  to  the 
water  of  streams  is  a  right  incident  to  property  in  the  land  ; 
it  is  a  right  puhlici  juris,  of  such  character  that  while  it  is 
common  and  equal  to  all  through  whose  land  it  runs,  and 
no  one  can  obstruct  or  divert  it,  yet,  as  one  of  the  gifts  of 

1  Elliot  V.  Fitchbiirg  R.  Co.,  10  Gush.  191. 

2  Wheatley  v.  Chrisman,  24  Penn.  St.  298 ;  Crooker  v.  Bragg,  10 
Wend.  260. 


2:2  DUTIES  OF  INDIVIDUALS  INTLR  SE.     [Chap.  XII. 

Providence,  each  proprietor  has  a  right  to  a  just  and  rea- 
sonable use  of  it  as  it  passes  through  his  land ;  and  so 
long  as  it  is  not  wholly  obstructed  or  diverted,  or  no  larger 
appropriation  of  the  water  running  through  it  is  made  than 
a  just  and  reasonable  use,  it  cannot  be  said  to  be  wrong- 
ful to  a  proprietor  lower  down.^ 

What  amounts  to  such  a  just  and  reasonable  use  may 
often  be  a  difficult  question.  To  take  a  quantity'  of  water 
from  a  large  stream  for  agriculture  or  manufacturing  pur- 
poses would  cause  no  sensible  diminution  of  the  benefit,  to 
the  prejudice  of  a  lower  proprietor  ;  while  taking  the  same 
quantity  from  a  small  brook  passing  thi'ough  man}'  farms 
would  be  of  great  and  manifest  injur}'  to  those  below  who 
need  it  for  domestic  or  other  use.  This  would  be  an  un- 
reasonable use  of  the  water,  and  an  action  would  he 
therefor.^ 

And  this  leads  to  the  remark  that  the  criterion  of  lia- 
bilit}'  for  abstracting  water  from  running  streams,  used  for 
mining  purposes,  is  whether,  considering  all  the  cu'cum- 
stances,  the  size  of  the  stream  and  that  of  the  mill-works, 
there  has  been  a  greater  use  of  the  stream,  in  abstracting 
or  detaining  the  water,  than  is  reasonably'  necessar}'  and 
usual  in  similar  establishments  for  carr3'ing  on  the  mill. 
A  mill-owner  is  not  liable  for  obstructing  and  using  the 
water  for  his  mill,  if  it  appear  that  his  dam  is  of  such  mag- 
nitude onl}'  as  is  adapted  to  the  size  and  capacit}'  of  the 
stream,  and  to  the  quantity  of  water  usually  flowing  there- 
in, and  that  his  mode  of  using  the  water  is  not  unusual  or 
unreasonable,  according  to  the  general  custom  of  the  coun- 
try in  cases  of  dams  upon  similar  streams  ;  and  this,  what- 
ever may  be  the  effect  upon  the  owners  of  land  below.' 

^  Elliot  V.  Fitchburg  R.  Co.,  supra.  -  lb. 

3  Springfield  t'.  Harris,  4  Allen,  4!)4;  8.  c.  Bigelow's  L.  C.  Torts, 
606.  See  Davis  v.  Getchell,  60  Maine,  G02 ;  Merrifield  v.  Worcester, 
110  Mass.  216;  Hayes  v.  Waldron,  44  N.  H.  580;  Pool  v.  Lewis,  41 
Ga.  162;  Timm  v.  Bear,  29  Wis.  254;  Clinton  v.  Myers,  46  N.  Y.  611. 


§  2-1  VIOLATION  OF  WATER  RIGHTS.  283 

For  example  :  The  defendant  is  the  owner  and  occupant  of 
a  mill  standing  on  his  land,  above  the  land  of  the  plaintiffs, 
riparian  owners  on  the  same  stream,  and  has,  in  operating 
his  mill  and  the  works  contained  in  it,  used  the  water  of 
the  stream  by  means  of  a  dam  erected  across  it.  The  dam 
is  of  a  magnitude  adapted  to  the  size  of  the  stream,  and 
the  mode  of  using  it  is  usual  and  reasonable,  according  to 
the  custom  of  the  country-  in  like  cases.  The  defendant 
is  not  liable  to  the  plaintiffs,  though  the  result  is  to  prevent 
the  plaintiffs  from  deriving  an}-  benefit,  such  as  thej'  would 
otherwise  enjo}',  from  the  existence  of  the  stream.^ 

It  is  not  clear  whether  mill  cases  stand  upon  any  favored 
footing,  apart  from  statute.  If  they  do  not,  it  follows 
that  the  question  of  damage  to  the  lower  proprietor  is  in 
no  case  the  criterion  for  determining  whether  there  has 
been  a  violation  of  duty ;  the  true  test  being  that  of  rea- 
sonable use. 

In  the  Pacific  States,  the  rights  of  riparian  occupants 
are  different.  The  person  who  there  first  appropriates,  for 
mining  or  other  purposes,  the  waters  of  a  stream  running 
in  the  public  lands,  is  entitled  to  the  same,  to  the  exclu- 
sion of  all  subsequent  appropriations  b}'  other  persons  for 
the  same  or  for  other  purposes.'  But,  if  the  first  occupant 
appropriate  onl}-  part  of  the  water,  another  maj'  appropri- 
ate the  rest ;  or  if  he  take  all  onl}'  on  certain  da^s  of  the 
week,  another  may  take  all  upon  other  da3's,^  The  appro- 
priation must,  however,  be  for  some  "useful  purpose," 
present  or  in  contemplation,  and  is  not  permitted  for  spec- 
ulation,* or  even  for  drainage  merely.^ 

The  water  of  a  stream  running  whoU}'  within  a  man's 
land  may  be  diverted,  if  it  be  returned   to  its   natural 

1  Springfield  v.  Harris,  supra. 

2  Smith  V.  O'Hara,  43  Cal.  371.  »  lb. 
*  Weaver  v.  Eureka  Lalce  Co.,  16  Cal.  271. 

8  McKinney  v.  Smith,  21  Cal.  374. 


234  DUTIES  OF  INDIVIDUALS  INTER  SE.    [Chap.  XII. 

channel  before  reaching  the  lower  proprietor ;  ^  and  this 
could  perhaps  be  done  where  the  water  runs  between  the 
lands  of  riparian  occupants,  so  far  as  the  rights  of  parties 
lower  down  are  concerned.  The  only  person  entitled  to 
complain  of  such  an  act  would  be  the  opposite  proprietor. 

It  is  to  be  observed,  however,  that  the  foregoing  sup- 
poses that  there  exists  no  right  hy  prescription  or  grant  to 
the  use  of  the  stream  by  either  the  upper  or  lower  proprie- 
tor. The  rights  and  burdens  of  the  parties  may  be  greatly 
varied  by  gi-ant  or  by  prescription. 

With  regard  to  surface  water  running  in  no  defined 
channel,  the  rule  of  law  is  that  every  occupant  of  land 
has  the  right  to  appropriate  such  water,  though  the  result 
is  to  prevent  the  flow  of  the  same  into  a  neighboring  stream, 
or  upon  the  land  of  an  adjoining  occupant.^  For  example  : 
The  defendant,  for  agricultural  and  other  useful  purposes, 
digs  a  drain  in  his  land,  the  eflTect  of  which  is  to  prevent 
the  ordinary  rainfall,  and  the  waters  of  a  spring  arising 
upon  his  land,  and  flowing  in  no  defined  channel,  from 
reaching  a  brook,  upon  which  the  plaintiff  has  for  fifty 
years  had  a  mill.  The  defendant  is  not  liable  for  the  diver- 
sion, however  serious  the  inconvenience  to  the  plaintiff.^ 

§  3.    Of  Sub-surface  Water. 

Thus  far  of  rights  to  appropriate  the  water  of  natural 
streams  running  in  defined  channels  above  ground.  As  to 
underground  water,  percolating  through  the  soil,  and  not 
running  in  defined  currents,  no  rights  can  arise  by  gi-ant  or 
prescription  apart  from  the  right  to  the  land  itself.* 

1  ToUe  V.  Correth,  31  Tex.  3G2. 

2  Broadbent  v.  Ramsbottom,  11  Ex.  602 ;  Luther  v.  Winnisimmet 
Co.,  9  Cush.  171;  Gannon  v.  Ilargadon,  10  Allen,  106;  Curtis  v. 
Ayrault,  47  N.  Y.  73,  78;  Livingston  v.  McDonald,  21  Iowa,  160,  166. 

8  Broadbent  v.  Ramsbottom,  supra ;  Rawstron  v.  Taylor,  lb.  369. 
*  Cliascmore  v.  Richards,  7  H.  L.  Cas.  349,  overruling  Balston  v. 
Benstcd,  1  Camp.  463. 


§  4.1  VIOLATION   OF   WATER   RIGHTS.  235 

If  the  course  of  subterranean  water  be  defined  and 
known,  as  is  the  case  with  streams  which  sink  under 
ground,  pursue  for  a  short  distance  a  subterraneous  course, 
and  then  emerge  again,  the  owner  of  the  land  lower  down 
has  the  same  rights  as  he  would  have  if  the  stream  flowed 
entirely  above  ground.^  But,  if  the  underground  water  be 
merely  percolation,  there  can  be  no  breach  of  dut}'  in  cutting 
it  oflT  from  a  lower  or  adjoining  land-owner.  For  example  : 
The  defendant,  a  land-owner  adjoining  the  plaintiff,  digs 
on  his  own  ground  an  extensive  well  for  the  purpose  of 
supphing  water  to  the  inhabitants  of  a  district,  many  of 
whom  have  no  title  as  land-owners  to  the  use  of  the  water. 
The  plaintiff  has  previousl}'  for  more  than  sixt}'  years  en- 
joj'cd  the  use  of  a  stream  (for  milling  purposes)  which  was 
chiefly  supplied  by  percolating  underground  water,  pro- 
duced b}'  rainfalls  ;  which  water  now,  after  the  digging  of 
the  well,  is  cut  off  and  fails  to  reach  the  stream.  The 
defendant's  act  is  no  breach  of  duty  to  the  plaintiflT.^ 

§  4.    Of  Pollution  of  Stream. 

If  the  water  of  a  stream  be  polluted,  or  otherwise  ren- 
dered useless  or  perhaps  materiallj'  less  useful  than  it  was 
before,  whether  it  be  surface  or  sub-surface  water,  and 
damage  ensue  to  a  lower  or  adjoining  owner,  he  can  main- 
tain an  action  therefor,  unless  a  right  to  do  the  thing  has 
been  acquired  by  grant  or  prescription.^    In  the  case  of  a 

1  Dickinson  v.  Grand  June.  Canal  Co.,  7  Ex.  282. 

'^  Chasemore  v.  Richards,  supra.  See,  also,  Chase  v.  Silverstone, 
62  Maine,  175 ;  Wilson  v.  New  Bedford,  108  Mass.  261 ;  Frazier  v. 
Brown,  12  Ohio  St.  294;  Hanson  v.  McCiie,  42  Cal.  303.  In  New 
Hampshire,  the  rule  of  law  is  different ;  and  the  doctrine  prevails  that 
the  right  to  cut  off  the  percolating  water  depends  upon  the  reasonable 
use  of  the  soil.  Bassett  v.  Salisbury  Manuf.  Co.,  43  N.  H.  569; 
Swett  V.  Cutts,  60  N.  H.  439. 

8  Whcatlcy  v.  Chrisman,  24  Penn.  St.  298;  O'lliley  v.  McCheeney, 
8  Lans.  278 ;  Merrifield  i,-.  Worcester,  110  Mass.  216. 


236  DUTIES  OF  INDIVIDUALS  INTER  SE.    [Chap.  XII. 

legislative  authority  to  pollute  the  waters  of  a  stream,  how- 
ever, this  doctrine  is  to  be  taken  with  qualification.  It  has 
been  laid  down  as  to  such  cases  that  a  city  is  not  liable  for 
polluting  by  sewage  the  water  of  a  stream,  which  it  has  a 
right  to  use  for  that  purpose,  so  far  as  the  efiect  is  the 
necessary  result  of  the  system  of  drainage  adopted  by  the 
city  ;  but  it  is  otherwise  if  the  pollution  be  attributable  to 
the  negligence  of  the  city  either  in  managing  the  system  or 
in  the  construction  of  the  sewers.^ 

1  Merrifield  v.  Worcester,  supra. 


§  2]  NUISANXE.  237 


CHAPTER  Xin. 

NUISANCE. 

§  1.   Introductory. 

Statement  of  the  duty.  A  owes  to  B  the  duty  (1)  to  for- 
bear to  obstruct  or  impair  the  use  of  the  public  wa3's  or 
waters  in  such  a  manner  as  to  produce  a  special  prejudice 
to  B  ;  (2)  to  forbear  to  flow  the  land  of  B  with  water  col- 
lected upon  his  own  land,  or  by  changing  the  course  of 
currents;^  (3)  to  forbear  to  cause  or  suffer  the  existence 
upon  his  own  premises  of  any  thing  not  naturally  there 
which  produces  a  special  prejudice  to  B  ;  (4)  to  forbear  to 
endanger  the  life  or  health  of  B,  or  to  disturb  his  physical 
comfort  in  a  special  degree  in  the  use  of  his  (A's)  premi- 
ses ;  (5)  to  forbear  to  commit  acts  of  indecency  or  other 
acts,  to  the  disturbance  of  B's  peace  of  mind,  such  as  would 
be  likely  to  aflfect  similarly  all  persons  of  the  State. 

OBSERVATIONS. 

1.  Public  nuisances  are  indictable  nuisances,  being  com- 
mitted (1)  in  the  public  wa3's  or  waters,  or  (2)  on  private 
premises  to  the  prejudice  of  a  multitude  of  people. 

2.  Private  nuisances  are  non-indictable  nuisances,  being 
committed  on  private  premises  to  the  prejudice  of  one 
person,  or  but  a  few  persons,  of  the  neighborhood. 

§  2.    Of  What  constitutes  a  Nuisance. 

To  determine  what  constitutes  a  nuisance,  so  as  to 
render  the  author  of  it  liable  to  a  neighbor  in  damages,  a 

^  See,  however,  p.  241. 


238         DUTIES  OF  Dv^DIVIDUALS  INTER  SE.   [Chap.  Xia 

variety'  of  considerations  must  often  be  taken  into  account ; 
especially  where  the  act  in  question  has  been  committed  in 
a  populous  neighborhood,  in  the  prosecution  of  a  manu- 
facturing business.  And,  even  if  the  business  itself  be 
unlawful,  it  does  not  follow  that  a  private  individual  can 
call  for  redress  by  way  of  a  civil  action  for  damages. 
Whether  he  can  do  so  or  not  will  depend  upon  the  ques- 
tion whether  he  has  sustained  a  special  damage,  b}'  reason 
of  the  thing  alleged  to  be  a  nuisance. 

Even  supposing  the  nuisance  not  to  be  a  public  one, 
that  is,  not  to  seriously  affect  the  rights  of  the  public  in 
general,  much  difficulty  arises  in  determining  when  the 
business  carried  on  upon  neighboring  premises,  either  in 
itself  or  in  the  manner  of  conducting  it,  is  so  detrimental 
as  to  subject  the  proprietor  or  manager  to  liability  in  dam- 
ages. And  this  difficulty  was  until  recently  increased  by 
certain  inexact  tenns  used  in  the  old  authorities.  It  was 
said  that  if  a  business  was  carried  on  in  a  "reasonable 
manner,"  an  action  for  damages  could  not  be  maintained, 
though  anno3"ance  resulted  ;  and  the  tenn  ' '  reasonable  man- 
ner "  was  explained  as  meaning  that  the  business  was  to  be 
carried  on  merely  in  a  convenient  place.  Tliat  is,  a  trade 
was  not  to  be  treated  as  a  nuisance  if  carried  on  in  the 
ordinary  manner  in  a  convenient  locality.  The  result  was 
often  to  bestow  upon  a  manufacturer  the  right  to  ruin  his 
neighbor's  propert}-,  provided  only  his  business  was  care- 
fully conducted  in  a  locality  convenient  for  its  management.^ 

Recent  Enghsh  authorities  have,  however,  removed  this 
latter  element  of  difficulty,  or  rather  of  hardship  upon  the 
sufferer,  by  declaring  that,  when  no  prescriptive  right  is 
proved,  the  true  meaning  of  the  term  "  convenient,"  as 
used  by  the  older  authorities,  lies  in  the  consideration 
whether  the  plaintiff  has  suffered  a  visible  detriment  in  his 

1  Comyns's  Digest,  Action  upon  tlie  Case  for  a  Nuisance,  C;  Hole 
V.  Barlow,  4  Com.  B.  n.  8.  334. 


§  2.]  NUISANCE.  23£ 

property  by  reason  of  the  management  or  nature  of  the 
defendant's  business :  if  he  has,  the  defendant  is  liable. 
Convenience  is  a  question  for  the  neighbor  and  not  for  the 
manufacturer ;  and  visible  damage  to  the  neighbor's  prop- 
ert}'  shows  that  the  business  is  carried  on  at  an  inconve- 
nient place.-'  For  example  :  The  defendants  are  proprietors 
of  copper-smelting  works  in  the  plaintiff's  neighborhood, 
where  many  other  manufacturing  works  are  carried  on. 
The  vapors  from  the  defendant's  works,  when  in  opera- 
tion, are  visibly-  injurious  to  the  trees  on  the  plaintiff's 
estate ;  the  defendants  having  no  prescriptive  right  to 
carry  on  their  business  as  and  w'here  they  do.  The  de- 
fendants are  guilt}'  of  a  breach  of  duty  to  the  plaintiff,  for 
which  they  are  liable  in  damages  ;  though,  for  the  purposes 
of  manufacturing,  the  business  is  carried  on  at  a  conve- 
nient place. '^ 

However,  a  person  living  in  a  populous  neighborhood 
must  suffer  some  anno3'ance  :  that  is  part  of  the  price 
which  he  paj's  for  the  privileges  which  he  ma}-  enjoy  there. 
He  cannot,  therefore,  bring  an  action  for  every  slight 
detriment  to  his  property  which  a  business  in  the  vicinity 
ma}'  produce.  Or,  to  state  the  case  in  the  language  of 
judicial  authority,  if  a  man  live  in  a  tow-n,  it  is  necessary 
that  he  should  subject  himself  to  the  consequences  of 
those  operations  of  trade  which  may  be  carried  on  in  his 
immediate  locaUty,  which  are  actually'  necessary  for  trade 
and  commerce,  and  also  for  the  enjoj-ment  of  property, 
and  for  the  benefit  of  the  inhabitants  of  the  town  and  of 
the  public  at  large.  If  a  man  live  in  a  street  where  there 
are  numerous  shops,  and  a  shop  be  opened  next  door  to 
him,  which  is  carried  on  in  a  fair  and  reasonable  way,  he 

1  Bamford  v.  Turnley,  3  Best  &  S.  66 ;  Carey  v.  Ledbitter,  13 
Com.  B.  N.  s.  470 ;  St.  Helen's  Smelting  Co.  v.  Tipping,  11  II.  L.  Cas. 
642;  s.  c.  Bigelow's  L.  C.  Torts,  454. 

-  St.  Helen's  Smelting  Co.  v.  Tipping,  supra.  / 


240         DUTIES  OF  INDIVIDUALS  INTER  SE.    [Chap.  XIII. 

has  no  ground  of  complaint  because  to  himself  individually 
there  may  arise  much  discomfort  from  the  trade  carried  on 
in  that  shop.  But  when  an  occupation  is  carried  on  by 
one  person  in  the  neighborhood  of  another,  and  the  result 
of  that  occupation  is  a  material  injury  to  property,  the 
case  is  different.^ 

It  should  be  observed  in  this  connection  that  the  plain- 
tiff is  not  precluded  from  recovering  by  reason  of  the  fact 
that  he  had  notice  of  the  existence  of  the  nuisance  when 
he  located  himself  near  it.  If  the  thing  complained  of  be 
unlawful — if  there  be  no  prescriptive  right  to  do  it — the 
doer  cannot  set  up  notice  to  escape  liability.^  For  exam- 
ple :  The  defendant  is  a  tallow  chandler,  carrying  on  his 
business  in  a  certain  messuage,  in  such  a  manner  as  to 
convey  and  diffuse  noxious  vapors  and  smells  over  prem- 
ises adjoining,  which  the  plaintiff  takes  possession  of 
while  the  defendant  is  carrying  on  his  business.  The 
defendant  is  liable.^ 

At  common  law,  by  man}^  authorities,  the  duty  not  to 
flood  a  neighbor's  premises  by  water  collected  upon  a 
man's  own  land,  or  by  changing  the  course  of  currents,  is 
of  a  more  exact  nature.  No  one  can  have  any  better 
right  to  throw  water  upon  another's  land,  without  permis- 
sion, than  he  has  to  make  an  entry  therein  without  per- 
mission. Such  an  act  might  be  treated  as  a  trespass,  and 
therefore  redressible,  though  no  damage  had  been  sus- 
tained ;  for  otherwise  a  right  to  flow  the  water  there  might 
eventually  be  acquired  by  prescription,  to  the  substantial 
confiscation  of  the  particular  piece  of  land.  For  example  : 
The  defendant  erects  an  embankment  upon  his  land, 
whereby  the  surface-water  accumulating  upon  the  plaintiff's 
land  is  prevented  from  flowing  off  in  its  natural  courses, 

1  The  Lord  Clmncellor  in  St.  Helen's  Smelting  Co.  v.  Tipping. 

2  Bliss  V.  Hall,  4  Bing.  N.  C.  183 ;  Bamford  v.  Tunilcy,  3  Best  & 
S,  62,  70,  73 ;  Bigelow's  L.  C.  Torts,  467.  »  Bliss  v.  Hall,  supra. 


§  2]  NUISANCE.  241 

and  caused  to  flow  in  a  different  direction  over  his  land. 
This  is  a  breach  of  duty  for  which  the  defendant  is  hable  to 
the  plaintiff,  though  the  latter  suffer  no  damage  thereby'. ^ 

A  fortiori^  will  the  flooding  of  one's  neighbor's  premises 
be  attended  with  legal  liabihty  when  damage  is  thereby 
occasioned,  and  this  is  true,  not  only  where  the  water  is 
tlirown  back  by  means  of  a  dam,  but  also  where  a  stream 
or  ditch  is  caused  to  overflow  by  turning  into  it  water  not 
naturally  or  entirely  tributary  to  it.  For  example :  The 
defendant,  in  the  course  of  reclaiming  and  improving  his 
land,  collects  the  surface-water  of  his  premises  into  a 
drain  or  ditch,  and  thereby  greatly  increases  the  quantity 
(or  changes  the  manner)  of  the  flow  upon  the  lower  lands  of 
the  plaintiff,  to  the  latter's  detriment.  This  is  a  breach  of 
dut}'.  and  the  defendant  is  liable  for  the  damage  caused.^ 

So  far  as  this  doctrine  applies  to  surface-water,  or  water 
flowing  through  drains  or  ditches,  and  not  in  natural 
streams,  it  is  by  some  courts  rejected  ;  and  it  is  held  that 
a  coterminous  proprietor  may  change  the  surface  of  his 
land  by  raising  or  filling  it  to  a  higher  grade  by  the  con- 
struction of  dikes  or  other  improvements,  though  the 
result  be  to  cause  an  accumulation  of  water  on  adjacent 
land,  and  prevent  it  from  passing  off.  The  right  of  a 
party  to  the  free  control  of  his  land  above,  upon,  or  be- 
neath the  surface  cannot,  it  is  deemed,  be  interfered  with 
by  considerations  of  injury  to  others  which  might  be  occa- 
sioned b}'  the  flow  of  mere  surface-water,  in  consequence 
of  the  lawful  appropriation  of  land  to  a  particular  use  or 
mode  of  enjo}'ment.* 

1  Tootle  V.  Clifton,  22  Ohio  St.  247.     See,  also,  Martin  v.  Riddle, 
26  Penn.  St.  415 ;  Kauffinan  v.  Giesemer,  lb.  407  ;  Ogburn  v.  Connor, 
46  Cal.  346;  Laumer  v.  Francis,  23  Mo.  181. 
^^  Livingston  v.  McDonald,  21  Iowa,  160. 

"  *  Gannon  v.  Ilargadon,  10  Allen,  106;  Dickinson  v.  "Worcester, 
7  Allen,  19  ;  Swett  v.  Cutts,  50  N.  H.  439 ;  Brown  v.  Collins,  63  N.  H. 
443.    Compare  Chap.  15,  §  2. 

16 


r 


242         DUTIES  or  INDIVIDUALS  INTER  SE.  [Chap.  XIII 

For  milling  purposes,  rights  are  granted,  under  various 
restrictions,  on  the  pajinent  of  damages,  to  flood  the 
lands  l3'ing  along  the  mill-streams  ;  for  the  nature  of  which 
rights,  reference  should  be  made  to  the  local  statutes  and 
the  judicial  interpretations  thereof. 

With  regard  to  actions  for  nuisances  to  personal  enjoy- 
ment, it  appears  to  be  quite  clear  that  for  such  smells  or 
vapors  proceeding  from  a  neighbor's  premises  as  are  merely 
disagreeable,  at  least  when  such  smells  or  vapors  are  the 
necessary  effect  of  a  business  properly  conducted  there,  no 
action  is  maintainable.^  The  noxious  gases  must  produce 
some  important  sensible  effect  upon  physical  comfort.  A 
person  is,  indeed,  sometimes  said  to  be  entitled  to  an  un- 
polluted and  untainted  stream  of  air  for  the  necessary  supply 
and  reasonable  use  of  himself  and  family  ;  but  by  the  terms 
"  untainted"  and  "  unpolluted"  are  meant,  not  necessarily 
air  as  fresh,  free,  and  pure  as  existed  before  the  business 
in  question  was  begiui,  but  air  not  rendered  to  an  important 
degree  less  compatible,  or  certainly  not  incompatible,  with 
the  physical  comfort  of  human  existence.^ 
''  The  criterion  therefore  of  liability  for  a  supposed  (pri- 
vate^) nuisance,  affecting  the  bodily  comfort  of  the  plaintiff, 
is,  whether  the  inconvenience  should  be  considered  as  more 
than  fanciful,  —  more  than  one  of  mere  dehcacy  or  fastidi- 
ousness, —  as  an  inconvenience  materially  interfering  with 
the  ordinary  physical  comfort  of  human  existence,  not 
merely  according  to  elegant  or  dainty  modes  and  habits  of 
living,  but  according  to  plain  and  simple  modes  of  life.* 

1  See  St.  Helen's  Smelting  Co.  v.  Tipping,  supra. 

2  Walter  v.  Selfe,  4  DeG.  &  S.  315. 

8  It  is  doubtful  if  the  right  of  action  for  injury  by  a  public  nui- 
sance would  stand  on  different  ground ;  but  the  court  in  Walter  v. 
Selfe  is  careful  to  say  that  a  private  nuisance  is  there  spoken  of. 

*  Walter  v.  Selfe,  supra.  See,  also,  Columbus  Gas  Co.  v.  Freeland, 
12  Ohio  St.  392 ;  Crump  v.  Lambert,  Law  R.  3  Eq.  409. 


§  2.]  NUISANCE.  243 

For  example  :  The  defendant  erects  upon  his  premises,  ad- 
joining the  premises  of  the  plaintiff,  a  kiln  for  the  manu- 
facture of  bricks,  and  in  the  process  of  the  manufacture 
the  smoke  and  vapors  and  floating  substances  from  the  kiln 
are  constantly  directed  to  and  within  the  plaintiff's  house, 
so  as  to  materially  affect  the  comfort  of  himself  and  family 
as  persons  of  ordinary  habits  of  Kfe.  This  is  a  breach  of 
dut^'  to  the  plaintiff,  though  it  appear  that  the  health  of 
his  family  has  actually  been  better  since  the  erection  of  the 
kiln  than  before.^ 

It  matters  not  what  it  is  that  produces  the  discomfort : 
smoke  alone  may  be  sufficient ;  and  the  same  is  true  of 
noxious  vapor  alone,  or  of  offensive  smells  alone.  What- 
ever produces  a  material  discomfort  to  human  life  in  the 
neighborhood  is  a  nuisance,  for  which  damages  are  recov- 
erable.^ 

Liability  for  disturbance  of  a  person's  peace  of  mind 
is  still  more  restricted,  and  appears  to  be  confined  to  acts 
such  as  would  produce  a  like  effect  upon  all  persons,  such 
as  acts  of  indecenc}- .  If  the  disturbance  complained  of  be 
such  as,  while  affecting  the  plaintiff's  mind  disagreeably 
and  seriously,  would  not  affect  the  mind  of  others,  his  com- 
plaint will  not  be  heard.  This  is  deemed  to  be  the  case 
of  mere  noise  made  on  the  Sabbath,  or  during  religious 
worship.  For  example  :  The  defendant  disturbs  the  plain- 
tiff during  divine  worship  in  church  by  making  loud  noises 
in  singing,  reading,  and  talking.  Tliis  is  deemed  to  be  no 
breach  of  duty  to  the  plaintiff.^ 

Thus  far  of  private  nuisances.  As  to  public  nuisances, 
it  is  to  be  observed  that  such  become  private  or  personal 
nuisances  as  well,  by  inflicting  upon  a  particular  individual 

'  Walter  v.  Selfe,  supra.  ^  Crump  v.  Lambert,  supra. 

8  Owen  V.  Henraan,  1  Watts  &  S.  548.  See,  also,  First  Baptist 
Church  V.  Utica  &  S.  R.  Co.,  5  Barb.  79 ;  Sparhawk  v.  Union  Tass. 
Ry.  Co.,  64  Penn.  St.  401,  cases  of  public  nuisance. 


244         DUTIES  OF  INDIVIDUALS  INTER  SE.   [Chap.  XIIL 

any  special  or  particular  damage.  For  example :  The 
defendant,  without  authority',  moors  a  barge  across  a  pub- 
lic navigable  stream,  and  obstructs  the  navigation  thereof 
to  the  plaintiff,  who  at  the  time  is  floating  a  barge  down 
the  stream.  This  i%  a  breach  of  duty  to  the  plaintiff,  for 
which  the  defendant  is  liable  to  him  in  damages.' 

If,  however,  the  obstruction  or  invasion  of  the  right  be 
one  of  like  effect  upon  all  persons,  producing  no  particu- 
lar, actual  damage  to  anj'  individual,  no  individual  can 
maintain  an  action  for  damages  by  reason  of  it.  In  other 
words,  it  is  necessarj'  to  the  maintenance  of  an  action  for 
damages  for  a  pubhc  nuisance  (and  the  same  is  true  of  a 
private  nuisance)  that  the  plaintiff  should  have  suffered 
actual,  specific  damage  thereby.^ 

It  matters  not  that  the  special  damage  sustained  by  the 
plaintiff  is  common  to  a  large  number  of  individuals,  pro- 
vided it  be  an  actual  damage  to  his  property,  or  injury  to 
his  health,  or  to  his  physical  comfort  (as  explained  in  con- 
sidering private  nuisances).  The  injury  inflicted  upon 
private  interests  is  not  merged  in  the  wrong  done  to  the 
general  public.  For  example  :  The  defendants  carrj^  on  a 
manufacturing  business  in  such  a  way  as  to  make  them- 
selves liable  for  causing  a  public  nuisance.  The  plain- 
tiff's premises  are  flUed  with  smoke,  and  his  house  shaken 
so  as  to  be  uncomfortable  for  occupation.  This  is  a  breach 
of  duty  to  the  plaintiff,  for  which  he  is  entitled  to  damages, 
though  every  one  else  in  the  vicinity  suffers  in  the  same 
manner.^ 

It  is,  however,  a  difficult  matter  to  state  what  sort  of 
detriment  will  amount  to  special  damage  within  the  law  of 

^  1  Rose  V.  Miles,  4  Maule  &  S.  101 ;  s.  c.  Bigelow's  L.  C.  Torts,  460. 

^  2  Wesson  v.  Washburn  Iron  Co.,  13  Allen,  95 ;   Milhau  v  Sharp, 
27  N.  Y.  612;>Grigsby  ;).  Clear  Lake  Water  Co.  40  Cal.  396. 
•^   8  Wesson  v.  Washburn  Iron  Co.,  supra.    See  Francis  v.  Schoellkopf, 
63  N.  Y.  152. 


§  2.]  NUISANCE.  245 

public  nuisances.  It  appears  to  be  necessary'  in  the  case 
of  obstructions  of  public  ways  or  waters  that  a  particular 
user  had  been  begun  by  the  plaintiff,  and  that  such  user 
was  interrupted  b}'  the  wrongful  act  of  the  defendant.* 
Before  the  complaining  party  has  entered  upon  the  actual 
enjoyment  of  the  public  easement,  the  wrongful  act  does 
not  directl}'  affect  him,  or  at  least  does  not  affect  him  in  a 
manner  to  enable  a  court  to  measure  the  loss  inflicted  upon 
him.  If  he  desire  to  make  use  of  the  easement,  he  can 
complain  to  the  prosecuting  officer  of  the  government,  and 
require  him  to  enter  public  proceedings  against  the  offender  ; 
or  —  so  it  appears  —  he  ma^'  proceed  to  make  his  particu- 
lar use  of  the  easement,  and  if  the  obstruction  be  not  re- 
moved before  he  reaches  it,  or  in  time  for  him  to  have  the 
fuU  enjoj'ment  of  passage,  he  may  bring  an  action  for 
the  damage  which  he  has  sustained  in  the  particular  case 
by  reason  of  the  obstruction. 

This  latter  proposition  follows  from  the  rule  of  law 
already  noticed,  that  the  plaintiff  is  not  barred  of  a  recov- 
er}' in  damages  by  reason  of  having  notice  of  the  existence 
of  the  nuisance  when  he  put  himself  in  the  way  of  suffer- 
ing damage  from  it.''^  Such  a  case  does  not  come  within 
the  principle  that  a  consenting  part}'  cannot  recover  for 
damage  sustained  b}'  reason  of  an  act  the  consequences  of 
which  he  has  invited,^  since  he  has  not  consented  to  the 
act  complained  of,  or  invited  its  consequences.  He  may 
have  reason  to  suppose  that  the  obstruction  will  be  removed 
before  he  reaches  it ;  or,  if  not,  he  may  well  sa}'  that  it  is 
wrongful,  and  imist  be  removed  before  he  reaches  it,  on 
pain  of  damages  for  any  loss  which  he  ma}^  sustain  by  rea- 
son of  its  continuance. 

If  the  obstruction  of  itself  be  insufficient  to  cause  any 

~-  1  See  Rose  v.  Miles,  4  Maule  &  S.  101 ;  8.  c.  Bigelow's  L.  C.  Torts, 
460. 

"^  Ante,  p.  240.  ^  Volenti  nonjit  injuria. 


246        DUTIES  OF  INDIVIDUALS  INTER  SE.   [Chap.  XIH 

actual  damage,  it  is  considered  that  no  right  of  action  can 
be  derived  by  incurring  expense  in  removing  it.  For  ex- 
ample :  The  defendant  obstructs  a  public  footway,  and  the 
plaintiff  on  coming  to  the  obstruction,  in  passing  along  the 
way,  causes  the  obstruction  to  be  removed ;  and  this  is 
repeated  several  times.  No  other  damage  is  proved.  The 
defendant  is  not  liable.^ 

It  follows  that  the  mere  fact  that  the  plaintiff  has  been 
turned  aside  by  reason  of  the  obstruction  and  caused  to 
proceed,  if  at  all,  by  a  different  route  from  that  intended 
by  him  is  not  special  damage  :  he  must  have  suffered  some 
specific  loss  by  reason  of  being  thus  defeated  in  his  pur- 
pose. And  this  has  been  held  equally  true  of  obstructions 
to  the  pubhc  wagon  roads.  For  example  :  The  defendant 
obstructs  a  pubhc  highway  leading  directly  to  the  plain- 
tiff's farm,  and  the  plaintiff  is  thereby  compelled  to  go  to 
his  land,  if  at  all,  with  his  team,  by  a  longer  and  very  cir- 
cuitous road  ;  but  no  specific  loss  is  proved.  The  defend- 
ant is  not  Uable  to  the  plaintiff.^ 

The  case  has  been  thought  to  be  different  if  the  way 
were  of  peculiar  use  to  the  plaintiff,  as  by  being  his  only 
means  of  reaching  his  lands  with  wagon.  For  example  : 
The  defendant,  by  raising  the  water  of  his  dam,  floods  a 
highway-,  and  renders  it  impassable  ;  this  highway  furnish- 
ing the  only  means  of  ingress  and  egress  to  part  of  the 
plaintiff's  farm  in  use.  The  defendant  is  deemed  to  be 
liable  in  damages  to  the  plaintiff.^ 

It  seems  questionable,  however,  if  the  plaintiff  should  be 
entitled  to  recover  in  such  a  case  for  the  mere  obstruction 
of  ingress  and  egress  to  his  lands.  If  he  can  show  no 
other  damage,  he  should  call  upon  the  government  to  re- 
dress the  wrong  as  a  nuisance  to  the  pubhc.     But  if,  by 

1  Wiiiterbottom  v.  Derby,  Law  R.  2  Ex.  316. 

2  Houck  V.  Wachter,  34  Md.  265. 
8  Venard  v.  Cross,  8  Kans.  248. 


i 


§  2.J  NUISANCE.  247 

reason  of  closing  the  highway,  the  plaintiff's  crops  are 
caused  to  suffer  (access  to  the  land  by  team  being  neces- 
sary for  the  care  of  the  same),  or  if,  having  cattle  or 
horses  and  wagons  within  the  tract  thus  cut  off,  he  cannot 
bring  them  away,  and  damage  ensue,  he  would  clearly  be 
entitled  to  require  the  offender  to  compensate  him.'' 

^  It  is,  therefore,  worthy  of  doubt  whether  the  fact  that  the  plain- 
tiff has  been  incommoded  in  a  different  manner  from  the  rest  of  the 
public  be  always  sufficient  to  entitle  him  to  sue  for  damages-  If 
still  that  inconvenience  do  not  result  in  specific  loss  to  him,  he  can 
hardly  have  sustained  "  special  damage." 


248         DUTIES  OF  INDIVIDUALS  INTER  SE.   [Chap.  XIV 


CHAPTER  XIV. 
DAMAGE    BY    ANIMALS. 

§  1.  Iktroductort. 

Statement  of  the  duty.  A  owes  to  B  the  duty  to  prevent 
his  animals  from  doing  damage  to  B,  if  he  has  notice  of 
their  propensity  to  do  damage. 

§  2.  Of  Notice  of  Propensity  to  do  Damage, 

Whoever  keeps  an  animal  with  notice  that  it  has  a  pro- 
pensity to  do  damage  is  liable  to  an}^  person  who,  with- 
out fault  of  his  own  contributing  to  the  injiuy,  suffers  an 
injury  from  such  animal ;  and  this,  though  the  keeper  be 
not  guilty  of  neghgence  in  regard  to  properly  or  securely 
keeping  it.  The  gist  of  liabilit3'  for  the  damage  is  the 
keeping  of  the  animal  after  notice  of  the  evil  propensity. 
For  example :  The  defendant  has  a  monkej',  which  he 
knows  is  accustomed  to  bite  people.  The  plaintiff,  with- 
out fault  of  her  own,  is  bitten  b}'  the  anhnal.  The  defend- 
ant is  liable,  however  careful  he  may  have  been  in  keeping 
the  monkey.-' 

If  the  animal  be  ferce  naturce^  it  will  (probably-)  be  pre- 
i  sumed  that  the  defendant  had  notice  of  an}^  vicious  pro- 
pensity wherebj'  the  plaintiff  has  suffered  injury,  since  it  is 
according  to  the  nature  of  such  an  animal  to  do  damage.^ 

1  May  V.  Burdett,  9  Q.  B.  101 ;  8.  c.  Bigelow's  L.  C.  Torts,  47& 
Sec  Jackson  v.  Smithson,  15  Mees.  &  W.  6G3 ;  Popplewell  v.  Pierce, 
10  Cush.  609;  Oakes  v.  Spaulding,  40  Vt.  3-47;  Card  v.  Case,  6  Com. 
B.  622. 

■2  If  a  wild  animal  has  been  tamed  and  domesticated,  the  case  may 
be  different. 


§  2.]  DAMAGE  BY  ANIMALS.  249 

And  even  if  the  animal  be  domestic,  the  owner  will  be  pre- 
sumed to  have  notice  of  any  propensity  which  is  secundum 
naturam  of  the  animal.  For  example :  The  defendant's 
cattle  stra}'  into  the  plaintiff's  garden,  and  beat  and  tear 
down  the  growing  vegetables.  The  defendant  is  liable, 
though  not  guilt}^  of  negligence ;  since  it  is  of  the  nature 
of  straying  cattle  to  do  such  damage.^ 

In  the  case  of  injuries  committed  hy  domestic  animals 
contra  naturam^  it  is  clear  that  the  owner  is  not  Uable  if  he 
had  no  notice  of  the  propensit}-.^  For  example  :  The  de- 
fendant's horse  kicks  the  plaintiff,  neither  the  plaintiff  nor 
the  defendant  being  at  fault,  and  the  defendant  having  no 
notice  of  a  propensity'  of  the  horse  to  kick.  The  defendant 
is  not  liable  ;  since  it  is  not  of  the  nature  of  horses  to  kick 
people,  when  not  provoked  to  the  act.^ 

Statutes  have  been  quite  generalh'  passed,  declaring  it 
unnecessary-  in  an  action  against  the  owner  of  a  dog  to 
prove  a  previous  propensity  of  the  animal  to  injure  sheep 
or  cattle.  In  the  absence  of  statute,  however,  the  rule 
requiring  notice  of  the  vicious  propensity-  prevails  as  to 
dogs  as  well  as  with  regard  to  other  domestic  animals.'^ 

While,  however,  negligence  in  the  owner  of  the  animal 
is  not  necessary  to  constitute  a  breach  of  dut}-  when  the 
scienter  can  be  proved,  negligence  in  the  care  of  the  animal 
will  (probabl}-)  render  the  owner  liable,  though  he  did  not 
know  of  the  propensity. 

It  must  at  the  same  time  be  understood  that  the  right  of 
redress  of  the  injured  person  will  be  defeated  if  the  injury 
was  caused  by  his  own  fault.     A  person  who  u-ritates  an 

1  See  Cox  v.  Burbridge,  13  Com.  B.  n.  s.  430,  438,  Williams,  J. 

2  Bigelow's  L.  C.  Torts,  490. 

8  Cox  V.  Burbridge,  supra.  The  plaintiff  was  a  child  playing  in 
the  highway  at  the  time  of  the  injury,  but  there  was  no  evidence 
that  he  had  done  any  tiling  to  irritate  the  horse. 

*  Bigelow's  L.  C.  Torts,  490. 


2.'>0         DUTIES  OF  INDIVIDUALS  INTER  SE.   [Chap.  XIV. 

animal,  and  is  bitten  or  kicked  in  turn,  is  deemed  in  law  to 
have  consented  to  the  damage  sustained,  and  cannot  re- 
cover. But  if  the  fault  of  the  injured  party  had  no  neces- 
sary or  natural  and  usual  connection  with  the  injmy, 
operating  to  produce  the  injur}'  as  cause  produces  effect, 
the  owner  of  the  animal  will  be  liable.  For  example  :  The 
defendant  keeps  upon  his  premises  a  ferocious  dog,  and 
the  plaintiff,  having  no  notice  that  such  a  dog  is  there, 
trespasses  in  the  day-time  upon  the  premises,  and  the  dog 
rushes  upon  him  and  bites  him.  The  defendant  is  liable  ;  ^ 
since  it  is  not  the  necessar}'  or  natural  and  usual  conse- 
quence of  a  person's  trespassing  upon  a  man's  premises 
by  day  that  he  should  be  attacked  b}^  a  savage  dog. 

If,  however,  the  plaintiff  had  notice  that  the  vicious  ani- 
mal was  loose  upon  the  premises,  the  case  would  be  differ- 
ent, since  it  would  be  the  natural  and  usual  result  of 
trespassing  upon  the  land  that  the  animal  would  attack 
the  trespasser.  And  if  a  person  were  to  venture  upon 
another's  premises  in  the  country  as  a  trespasser  in  the 
night-time,  it  might  perhaps  be  considered  that  he  had 
entered  with  notice  of  danger,  since  it  is  not  unusual  for 
people  in  the  country  to  keep  watch-dogs  upon  their  lands. 
But,  if  the  trespasser  were  not  engaged  in  mischief  or  rea- 
sonably suspected  of  mischievous  intent,  the  owner  would 
have  no  right  to  set  his  dog  upon  the  person  before  notice 
to  leave  the  premises,  even  if  he  would  after  notice ;  for  a 
wilful,  wanton,  and  unnecessary  injury  doue  to  a  man  or 
even  to  his  beast,  though  trespassing,  cannot  be  justified.'^ 
Necessary  force  to  resist  the  entry,  or  eject  the  ti-espasser 
after  his  wrongful  entry,  is  the  utmost  which  the  law  allows 
the  owner  or  occupant  of  the  premises.* 

^  Loorais  V.  Terry,  17  Wend.  496.       2  ggg  Looniis  v.  Terry,  supra. 

*  lb.  This  would  be  another  way  also  of  explaining  the  right  of 
the  trespasser  to  recover  when,  having  entered  without  notice,  he  is 
attacked  and  bitten  by  the  dog  without  the  direct  command  of  the 
owner. 


S  3.]  DAMAGE   BY  ANIMALS.  251 

§  3.    Of  Escape  of  Animals. 

By  the  common  law  of  England  and  of  most  of  the 
American  States,  the  owner  of  land  is  bonnd  to  keep  it 
fenced  ;  and  if  his  cattle  escape  and  get  into  his  neighbor's 
premises,  he  is  hable  for  the  damage  done,  whether  the 
escape  was  owing  to  his  negligence  or  not.  For  example  : 
The  defendant  is  an  adjoining  land-owner  to  the  plaintiff. 
Then*  lands  have  been  separated  by  a  partition  fence,  but 
part  of  it  has  been  carried  away  by  high  water  a  year  before 
the  wrong  complained  of  took  place.  The  defendant,  know- 
ing of  the  condition  of  the  fence  (which  the  plaintiff  is 
equally  bound  to  repair) ,  turns  his  cattle  in  upon  the  ad- 
joining close,  whence  they  escape  into  the  plaintiff's  close 
and  destroy  his  corn.  The  defendant  is  hable. ^  Again : 
The  defendant's  horse  bites  and  kicks  the  plaintiff's  horse 
through  the  partition  fence  between  the  plaintiff's  and  de- 
fendant's premises.  The  defendant  is  liable,  though  not 
guilty  of  negligence.^ 

This  common-law  duty  has,  however,  been  variously 
modified  by  statute  in  this  country.  And  the  English 
common  law  itself  is  held  inapplicable  to  the  state  of  the 
country  in  some  of  the  Western  States.^ 

1  Myers  v.  Dodd,  9  Ind.  290 ;  Webber  v.  Closson,  35  Maine,  26. 

2  Ellis  V.  Loftus  Iron  Co.,  Law  R.  10  C.  P.  10. 

8  3  Kent's  Com.  438,  note  1  (12th  ed.);  Kerwhacker  v.  Cleveland 
4iC.  R.  Co.,  3  Ohio  St.  172. 


252  DUTIES  OF  INDIVIDUALS  INTER  SE.     [Chap.  XV. 


CHAPTER  XV. 

ESCAPE  OF  DANGEROUS  ELEMENTS  OR  SUBSTANCES. 

§  1.  Introductory. 

Statement  of  the  duty}  A  owes  to  B  the  duty  to  prevent 
the  escape  of  axvj  dangerous  thing,  to  the  damage  of  B, 
brought  or  made  upon  the  premises  of  A  ;  the  escape 
being  due  to  defects  within  the  control,  though  not  within 
the  knowledge,  of  A. 

§  2.  Of  the  Nature  of  the  Protection  Required. 

The  duty  considered  in  the  preceding  chapter  of  re- 
straining animals  from  doing  damage  has  been  treated  in 
England  as  furnishing  ground  for  an  analogous  duty  with 
reference  to  inanimate  things  of  a  pecuharl}-  dangerous 
character,  which  the  occupant  of  premises  has  brought  or 
made  thereon,  —  the  duty,  to  wit,  of  so  keeping  such  things 
that  they  shall  not  do  mischief  to  the  occupant's  neighbor ; 
within  limitations  now  to  be  stated. 

''  In  the  language,  substantiall}-,  of  judicial  authority, 
where  the  owner  of  land,  without  wilfulness  or  negligence, 
uses  his  land  in  the  ordinary  manner,  he  will  not  be  liable 
in  damages,  though  mischief  should  thereby'  be  occasioned 
to  his  neighbor.  But  if  he  bring  upon  his  land  an}-  thing 
which  would  not  naturally  come  there,  the  thing  being  in 
itself  dangerous,  and  likely  to  do  mischief  if  not  kept 
under  proper  control,  he  will  be  liable  for  any  mischief 
thereby'  produced,  though  in  doing  so  he  may  act  without 

^  This  statement  is  deduced  from  the  English  authorities.  What 
the  American  law  is,  is  not  clear,  as  will  be  seen  infra. 


Li- 


§  2.]    ESCAPE  OF  DANGEROUS  ELEMENTS,  ETC.   253 

personal  wilfulness  or  negligence.  For  example :  The 
defendants  construct  a  reservoir  on  land  separated  from 
the  plaintiff's  collier}'  by  intervening  land.  Mines  under 
the  site  of  the  reservoir',  and  under  part  of  the  intervening 
land,  have  been  formerly  worked  ;  and  the  plaintiff  has,  by 
workings  lawfully  made  in  his  own  collier}^  and  in  the 
intervening  land,  opened  an  underground  communication 
between  his  own  collier}'  and  the  old  workings  under  the 
reservoir.  It  has  not  been  known  to  the  defendants,  or 
to  an}-  person  employed  by  them  in  the  construction  of  the 
reservoir,  that  such  communication  exists,  or  that  there 
have  been  any  old  workings  under  the  site  of  the  reser- 
voir ;  and  the  defendants  have  not  been  personally  guilty 
of  any  negligence.  The  reservoir  is  in  fact,  but  without 
the  defendants'  knowledge,  constructed  over  five  old  shafts, 
filled  with  rubbish  and  other  loose  material,  and  leading 
down  to  the  workings  ;  and  having  been  filled  with  water, 
the  water  bursts  down  these  shafts  and  flows  by  the 
underground  channel  into  the  plaintiff's  mines,  producing 
damage.     The  defendants  are  liable.^ 

The  owners  of  the  upper  tenement  have,  however,  in  | 
such  cases,  a  right  to  work  their  premises  in  the  ordinary, 
reasonable,  and  proper  manner,  and  are  not  Uable  for  the 
effects  of  water  which  flows  down  into  the  lower  tenement 
by  mere  force  of  gravitation.  But  where  some  unusual 
and  extraordinary  effort  is  put  forth  for  effecting  the  occu- 
pant's purpose,  he  is  liable  for  the  injurious  results  which 
follow.^  For  example :  The  defendant,  owner  of  a  coal 
mine  above  the  plaintiff's  mine,  works  out  the  whole  of 
his  coal,  leaving  no  barrier  between  his  mine  and  the 
plaintiff's,   the  consequence  of  which  is,  that  the  water 

^  1  Eylaiuls  v.  Fletcher,  Law  R.  3  H.  L.  330 ;  8.  c.  Law  R.  1  Ex. 
265,  reversing  3  Hurl.  &  C.  774. 

2  lb. ;  Smith  v.  Fletcher,  Law  R.  9  Ex.  64,  reversing  Law  R.  7  Ex. 
805;  Baird  v.  Williamson,  15  Com.  B.  n.  s.  376. 


254         DUTIES  OF  INDRTDUALS  INTER  SE.     [Chap.  XV, 

percolating  through  the  upper  mine  flows  into  the  lower 
one,  and  obstructs  the  plaintiff  in  getting  out  his  coal. 
This  is  no  breach  of  duty  to  the  defendant ;  the  water 
having  flowed  down  in  its  natural  course,  and  the  defend- 
ant being  entitled  to  remove  all  of  his  coal.^  Again  :  The 
defendant,  under  the  like  circumstances,  does  not  merely 
suffer  the  water  to  flow  through  his  mine  in  its  natural 
way,  but,  in  order  to  work  his  mine  beneficiall}',  pumps  up 
quantities  of  water  which  pass  into  the  plaintiff's  mine,  in 
addition  to  that  which  would  naturally  have  reached  it, 
whereby  the  plaintiff  suffers  damage.  This  is  a  breach  of 
duty  to  the  plaintiff,  though  it  is  done  without  negligence, 
and  in  the  due  working  of  the  defendant's  mine.^ 
r~  If  the  damage  be  produced  by  vis  major  or  b}'  the  act 
of  God,  or  otherwise,  without  the  intervention  of  acts  of 
the  occupant  or  of  those  for  whom  he  is  responsible,  the 
case  will  be  different,  although  the  occupant  ma}'  have 
brought  the  dangerous  element  or  thing  upon  his  premises. 
In  the  example  given,  if  the  damage  had  been  caused  by 
I  lightning  bursting  the  reservoir,  and  not  by  reason  of  the 
i  existence  of  the  openings  into  the  lower  mines,  the  defend- 
ants would  not  have  been  liable.  Again  :  The  defendant's 
tenants,  the  plaintiffs,  occupy  the  lower  story  of  a  ware- 
house, of  which  the  defendant  occupies  the  upper.  A 
hole  has  been  gnawed  b}'  rats  through  a  box  into  which 
water  from  the  gutters  of  the  building  is  collected,  to  be 
thence  discharged  by  a  pipe  into  the  drains.  The  water, 
now  pouring  through  the  hole,  runs  down  and  wets  the 
plaintiffs'  goods.  The  defendant  is  not  liable.^  Again : 
The  defendant  owns  premises  on  which  stand  j'ew-trees, 

1  Smith  V.  Konrick,  7  Com.  B.  564. 

2  Baird  v.  Williamson,  supra. 

8  Carstairs  v.  Taylor,  Law  R.  6  Ex.  217  ;  Ross  v.  Fedden,  Law  R. 
7  Q.  B  6GL  See  Doupe  v.  Geniu,  46  N.  Y.  119.  But  see  Marshall  v. 
Cohen  44  Ga.  489. 


§  2.]   ESCAPE  OE  DANGEROUS  ELEMENTS,  ETC.   255 

which,  to  his  knowledge,  are  poisonous.  A  third  person 
clips  some  of  the  branches,  which  fall  upon  the  plaintiff's 
land,  and  poison  the  latter's  horses.  The  defendant  is 
not  liable.-' 

If,  too,  the  bringing  the  dangerous  element  upon  the^ 
occupant's  land,  and  all  the  works  connected  therewith,  be 
effected  under  sanction  of  legislative  authority,  the  fact 
that  they  result  in  damage  to  the  party's  neighbor  by 
purel}'  natural  escape  or  by  authorized  channels,  and  not 
by  reason  of  negligence  attributable  to  the  occupant,  will 
not  render  the  occupant  liable.^  It  is  also  certain  that, 
if  the  escape  be  caused  b}'  the  act  of  God,  no  liability 
foUows.  For  example  :  The  defendant  is  charged  b}'  law 
with  the  duty  of  maintaining  water  tanks  in  his  district 
for  purposes  of  irrigation,  as  part  of  a  national  sj'stem  of 
irrigation,  for  the  welfare  of  the  people.  By  reason  of  an 
extraordinary'  flood,  and  not  b}'  reason  of  the  bad  condi- 
tion of  the  works,  one  of  these  tanks  gives  wa}',  causing 
damage  to  the  plaintiffs.  The  plaintiffs  cannot  recover 
therefor.^ 

On  the  other  hand,  if  the  works  be  of  a  nature  to  require  i 
legislative  sanction,  the  proprietor  or  manager,  when  not  •- 
having  it,  will  be  hable  for  damage  produced  by  an}-  escape 
or  breaking  thereof,  however  occurring.  For  example : 
The  defendants  make  use  of  locomotive  engines,  without 
ha%ang  obtained  the  necessary  authority  of  law,  and  the 
plaintiff  suffers  damage  by  reason  of  fire  proceeding  from 
the  same.  The  defendants  are  hable,  though  not  guilty 
of  an}^  negligence  in  the  management  of  the  engines,  and 
though  they  would  not  have  been  liable  had  they  had  the 
proper  authority.* 

1  Wilson  V.  Newberry,  Law  R.  7  Q.  B.  31. 

2  See  Vaughan  v.  Taff  Vale  By.  Co.,  5  Hurl.  &  N.  679. 

8  Madras  Hy.  Co.  v.  The  Zemindar,  Law  R.  Ind.  App.  364. 
*  Jones  V.  Festiniog  Ry.  Co.,  Law  R.  3  Q.  B.  733;  Vaughan  v.  Taff 
Vale  Ry  Co.,  supra. 


2'>6         DUTIES  OF  INDIVIDUALS  INTER  SE.     [Chap.  XV. 

The  foregoing  is  to  be  understood  as  a  statement  of  the 
law  of  England.  The  American  authorities  upon  this  sub- 
ject are  not  in  perfect  accord,  though  not  many  of  them 
appear  to  be  at  variance  with  those  of  England.  It  is  held 
in  some  States  that,  if  a  person  cut  off  the  flow  of  surface- 
water,  he  has  no  right  to  burden  his  neighbor's  prem- 
ises with  the  back-flow,^  or  with  new  streams  of  water.^  So, 
one  who,  in  the  course  of  reclaiming  and  impro^^ng  his 
land,  collects  the  surface-water  of  his  premises  into  a  drain 
or  ditch,  and  therebj'  greatly  increases  the  quantity  or 
changes  the  manner  of  the  flow  upon  the  lower  lands  of 
his  neighbor,  is  by  some  courts  held  liable  for  the  damage 
occasioned.^  These,  however,  are  different  cases  from 
those  above  presented.  In  neither  of  them  is  the  purpose 
of  the  defendant  to  collect  the  water  upon  his  own  prem- 
ises for  use  there.  In  the  first  case,  the  act  ma}'  have  no 
reference  to  the  flow  of  water,  as  where  the  water  is  cut 
off  b}'  the  construction  of  an  embankment  upon  which  to 
laj'  the  tracks  of  a  railroad.^  In  the  second  case,  the  ob- 
ject is  to  get  rid  of,  and  not  to  collect,  the  water.  Such 
cases  may  therefore  be  treated  as  cases  of  nuisance.® 
(-  It  has  also  been  decided  in  this  country  that  the  occu- 
pant of  premises  may  be  liable  for  damage  caused  by  the 
fall  of  ice  or  snow  from  the  roof  of  his  building  when  the 
roof  is  so  constructed  as  to  make  it  substantially  certain 
that,  if  the  snow  be  not  removed,  accidents  from  snow- 
slides  will  occur ;  although  the  roof  be  constructed  in  the 
usual  manner  of  the  times."    And  with  regard  to  water 

1  Gillham  v.  Madison  R.  Co.,  49  111.  484.  As  to  the  rule  in  Massa 
chusetts  and  New  Ilampsliire,  see  Gannon  v.  Hargadon,  10  Allf>)j, 
100 ;  Dickinson  v.  Worcester,  7  Allen,  19 ;  Swett  v.  Cutts,  60  N.  H 
439 ;  anie,  pp.  240,  241. 

2  Tootle  V.  Clifton,  22  Ohio  St.  247. 

'  8  Livingston  v.  McDonald,  21  Iowa,  160. 
♦  Gillham  v.  Madison  R.  Co.,  supra.  ^  Ante,  p.  241. 

«  Shipley  v.  Fifty  Associates,  106  Mass.  194. 


§  2.]        ESCAPE  OF  DANGEROUS  ELEMENTS,  ETC.       257 

collected  in  reservoirs,  it  is  held  that  the  embankments 
must  be  so  thoroughly  constructed  that  the  water  cannot 
percolate  through  them.^ 

The  doctrine  has  also  been  laid  down  in  this  country 
that  where  the  alleged  rights  of  adjoining  land-owners  con- 
flict, it  is  better  that  one  of  them  should  j'ield  to  the  other 
and  forego  a  particular  use  of  his  land,  rather  than,  by 
insisting  upon  that  use,  deprive  the  other  altogether  of  the 
use  of  his  property ;  which  might  often  be  the  consequence 
of  carrjing  on  the  operation.  This  would,  of  course,  be 
an  obvious  principle  if  stated  with  regard  to  a  nuisance ; 
but  it  is  treated  as  applicable  to  other  wrongs  as  well.  For 
example :  The  defendants,  in  the  course  of  digging  a  canal 
through  their  land,  for  which  purpose  they  are  clothed  with 
legislative  authority,^  find  it  necessary  to  blast  rocks  by 
the  use  of  gunpowder.  The  result  of  the  blasting  is  to 
throw  fragments  of  rock  against  the  plaintiff's  house, 
whereby  the  plaintiff  suffers  damage.  The  defendants  are 
deemed  liable,  though  not  guilt}'  of  neghgence.^ 

A  distinction  has,  however,  been  observed  to  exist  be- 
tween an  injury  sustained  in  that  way  and  one  sustained 
by  the  explosion  of  a  boiler  on  the  defendant's  preuiist\s. 
For  damage  sustained  in  the  latter  way,  it  is  deemed  that 
no  right  of  action  arises  unless  the  explosion  was  due  to 
negligence  of  tlie  manager.'*  The  use  of  a  boiler  is  not 
necessarily  dangerous. 

It  will  thus  appear  that  the  American  law  with  regard  to 
this  important  subject  of  the  escape  of  dangerous  elements, 
not  attributable  to  neghgence,  cannot  be  said  to  have  taken 

1  Wilson  V.  New  Bedford,  108  Mass.  261 ;  Pixley  v.  Clark,  35  N.  Y. 
520. 

2  The  work  could  not  therefore  be  a  nuisance  when  carefully 
conducted. 

8  Hay  V.  Cohoes  Co.,  2  Comst.  159. 

*  Losee  v.  Buchanan,  51  N.  Y.  476.  The  English  doctrine  above 
presented  is  denied  in  tliis  case. 

17 


258  DUTIES   OF   INDIVIDUALS  INTER  SE.   [Chap.  XV. 

distinct  form.  Tlie  English  doctrine  is  itself  a  new  feature 
of  the  English  law,  and  it  remains  to  be  seen  whether  it 
will  be  fully  engrafted  upon  the  American  jurisprudence. 

It  should  be  observed,  however,  that,  in  the  absence  of 
negligence,  liability  arises  by  the  English  law  apparently 
only  (1)  when  the  thing  which  escapes  is  obviously  dan- 
gerous, and  (2)  when  the  escape  was  due  to  defects  within 
the  control  of  the  owner  or  manager. 

Nitro-glycerine  is  an  obviously  dangerous  substance ; 
and  to  bring  a  quautit}-  of  it  upon  a  man's  premises  would 
be  a  great  exposure  to  others,  however  carefull}"  it  were 
kept.  Hence  if  it  should  escape  to  the  damage  of  a  neigh- 
bor, and  that  escape  should  be  due  to  a  defect  within  the 
control  of  the  manager,  he  would  be  liable  for  the  damage  ; 
though  he  had  exercised  the  greatest  care  over  it,  and  was 
not  guilt}'  of  negligence  in  failing  to  discover  the  existence 
of  the  defect  whereby  it  escaped.  It  is  sufficient  that  that 
defect  was  such  that,  if  the  manager  had  known  of  its  ex- 
istence, he  might  have  prevented  the  damage. 

On  the  other  hand,  a  pile  of  lumber,  properly  made,  is 
obviously  not  dangerous  ;  and  hence  if  it  should  topple  and 
fall  upon  the  adjoining  close  by  reason  of  a  defect  in  the 
foundation  or  of  the  sinking  of  the  soil,  without  fault  of 
the  occupant,  he  could  not  be  liable. 

A  house,  likewise,  is  obviously  not  dangerous  when  in 
ordinar}-  condition  for  occupancy ;  and  hence  if  it  should 
fall,  to  the  injury  of  the  adjoining  owner,  he  would  be  with- 
out redress,  in  the  absence  of  neghgence  on  the  part  of  the 
occupant.  And  perhaps  the  same  might  be  said  of  a  scaf- 
folding erected  on  the  side  of  the  house.  Such  a  work  is 
not  obviously  dangerous,  when  properl}'  constructed. 

Again,  if  there  be  no  defect  in  that  which  contains  or 
supports  the  dangerous  substance,  or  if  there  be  a  defect 
not  within  the  control  of  the  occupant,  of  which  defect  he 
has  no  notice,  he  cannot  be  liable.     A  reservoir  might  be 


§  2.j        ESCAPE  OF  DANGEROUS  ELEMENTS,  ETC.       259 

constructed  over  the  course  of  an  underground  stream 
which  had  become  drj',  the  intervening  soil  not  being  suf- 
ficientl}'  firm  to  support  the  weight  of  water  accumulated 
above  ;  but,  if  the  owner  of  the  reservoir  had  no  notice  of 
the  defective  condition  of  the  soil,  he  could  not  be  liable 
for  damage  caused  by  the  sinking  of  the  work  and  the 
escape  of  the  water. 

If  this  be  the  effect  of  the  English  doctrine,  as  appears 
to  be  the  case,  its  reasonableness  can  scarcely  be  ques- 
tioned, and  its  acceptance  in  America  may  be  expected. 


260         DUTIES  OF  INDIVIDUALS  INTEK  SE.   [Chap.  XVI. 


CHAPTER    XVI. 

NEGLIGENCE. 

§  1.   Introductory. 

Statement  of  the  duty.  A  owes  to  B  the  duty  to  forbear  to 
inflict  damage  upon  him  hj  acts  or  omissions  not  in  con- 
formity with  the  conduct  of  a  prudent  or  careful  or  dili- 
gent man,  though  damage  be  not  actually  intended. 

Liability  ex  delicto  for  the  consequences  of  negligence 
arises  by  reason  only  of  acts,  or  omissions  after  the  doing 
of  acts.  In  respect  of  omissions  not  preceded  at  any 
time  hy  overt  acts  (either  b}-  the  defendant  or  b}^  his  pre- 
decessors in  interest)  in  connection  with  that  which  occa- 
sions the  damage,  though  there  may  be  liabiht}'  ex  contractu 
(the  omission  being  a  breach  of  contract),  there  can  be 
no  hability  in  tort,  as  for  negligence.  An  innkeeper  may 
be  liable  for  refusing  to  receive  a  man  as  guest  into  his 
inn,  and  a  carrier  maj'  be  liable  for  refusing  to  receive  a 
person  as  passenger  or  a  package  as  freight ;  but  the  lia- 
bilit}'  incurred  cannot  properly  be  treated  as  growing  out 
of  negligence.  Refusal  to  do  a  duty  is  one  thing ;  negli- 
gence is  another. 

There  can  arise  indeed  no  civil  liabilit}'  for  the  negli- 
gent omission  to  do  a  thing  required  b}'  law,  though 
commanded  by  the  Legislature,  unless  that  neglect  be  con- 
nected with  the  existence  of  something  already  done.  A 
town  may  be  required  to  build  a  bridge  across  a  stream, 
but  no  one  can  maintain  an  action  for  damages  against  the 
town  for  a  neglect  to  build  the  bridge,  however  inexcusa- 


§  1.]  NEGLIGENCE.  261 

ble  that  neglect ;  though  an  action  might  be  maintained 
for  damage  caused  by  a  failure  to  repair  a  bridge  which  the 
town  was  bound  to  keep  in  proper  condition.  In  the  latter 
case,  there  is  an  omission  preceded  (at  some  time)  by  an 
overt  act ;  to  wit,  the  building  of  the  bridge.  When  it  is, 
said  that  no  action  ex  delicto  can  be  maintained  for  a  pure 
non-feasance,  consisting  in  neglect  of  duty,  the  former 
case  is  to  be  understood  as  intended. 

It  is  conceded  by  all  of  the  authorities  that  the  standard 
by  which  to  determine  whether  a  person  has  been  guilty  of 
negligence  is  the  conduct  of  the  prudent  or  careful  or  dili- 
gent man.  But,  if  not  properly  understood,  this  standard 
will  itself  sometimes  be  misleading.  A  blacksmith  finds  a 
watch  by  the  roadside,  and  on  opening  it  and  seeing  that 
it  is  full  of  dirt,  attempts  to  clean  it  and  put  it  in  proper 
order ;  but  in  doing  so,  though  exercising  the  greatest 
care,  he  injures  it  by  reason  of  his  lack  of  skill.  Now  in 
attempting  to  put  the  watch  in  order,  and  thus  perhaps 
preventing  its  ruin,  he  has  done  nothing  that  a  prudent 
man  might  not  have  done  ;  and,  taking  the  criterion  in  its 
broadest  sense,  the  blacksmith  could  not  be  liable  to  the 
owner  of  the  watch  for  the  damage  which  he  did  to  it ; 
while  the  law  would  probably  be  just  the  contrary. 

A  prudent  blacksmith^  however,  would  not  have  under- 
taken to  put  the  watch  in  order ;  only  a  watchmaker,  or  a 
person  skilled  in  the  repair  of  watches,  would,  in  prudence, 
undertake  such  a  thing.  The  prudent  man,  therefore, 
with  regard  to  undertaking  an  act,  is  the  man  who  has  ac- 
quired the  skill  to  do  the  act  which  he  undertakes  :  a  man 
who  has  not  acquired  that  special  skill  is  imprudent  in  un- 
dertaking to  do  the  act,  however  careful  he  may  be,  and 
however  great  his  skill  in  other  things  of  a  different 
nature.^ 

The  criterion  then  of  the  conduct  of  the  prudent  or  cnre- 

1  See  Dean  v.  Keate,  3  Campb.  4. 


262         DUTIES  OF  INDIVIDUALS  INTER  SE.    [Chap.  XVI. 

fill  or  diligent  man  in  the  undertaking  of  an  act  is  to  be 
understood  with  the  limits  suggested.  The  question  to  be 
raised  with  regard  to  a  man's  conduct  brought  in  question 
in  such  a  case  is,  whether  a  prudent  or  careful  or  dihgent 
man  of  his  calhng  or  business  or  skill  would  have  under- 
taken to  do  the  thing  in  question ;  supposing  the  partj'  to 
have  exercised  due  oare  in  executing  the  work  undertaken. 

When  an  act  has  been  undertaken  by  a  person  whose 
business  or  profession  covers  the  doing  of  acts  of  the  kind 
in  question,  the  question  to  be  decided  is,  whether  that 
skill  or  care  or  dihgencc  has  been  exercised  which  a  pru- 
dent man  of  the  same  business  would  have  exercised  in  the 
same  situation. 

In  regard  to  omissions  (after  overt  acts)  to  perform  acts 
not  distinctly  and  certainly'  required  b}'  law,  the  question 
of  the  dut}'  to  perform  them  is  to  be  decided  b}'  the  general 
practice  of  prudent  or  careful  or  dihgent  men  of  the  same 
occupation,  when  such  a  practice  exists.  When  no  such 
practice  exists,  the  question  is  decided  upon  the  reasonably 
supposable  conduct  of  the  prudent  man  acting  under  the 
circumstances.^ 

If  the  act  not  performed  be  required  hj  law,  the  ques- 
tion of  the  conduct  of  the  prudent  man  becomes  imma- 
terial :  non-performance,  followed  by  damage,  affords  prima 
facie  a  right  of  action  for  the  failure. 

It  is  no  part  of  the  purpose  of  this  work  to  consider  the 
proper  province  of  the  court  and  jury  ;  but  in  regard  to  the 
subject  of  negligence  it  is  important  to  observe  that  there 
is  much  confusion  of  authority  upon  the  question  whether 
the  court  or  the  jur^'  should  determine  if  the  conduct  of 
the  defendant  (when  that  is  in  question)  has  conformed 
to  the  standard  of  the  prudent  or  cai'cful  or  skilful  man  as 
above  explained.     It  is  clear,  however,  by  most  of  the 

1  See  Dixon  v.  Bell,  6  Maule  &  S.  198;  8.  c.  Bigelow's  L.  C.  Torts, 
668. 


§  2-1  NEGLIGENCE.  2G3 

authorities,  that  where  the  facts  are  found,  aud  it  is  per- 
fectly manifest  that  a  prudent  man  would  or  would  not  do 
as  the  defendant  has  done,  the  court  may  rule  accordingl}-, 
or  rather  may  direct  the  jmT  to  find  accordingly.  The 
same  is  also  tnie  where  the  law  has  prescribed  the  nature 
of  the  dut}',  and  also  where  there  exists  a  well-known 
practice  in  the  communit}-,  of  a  proper  character.  In  other 
cases,  the  inference  concerning  negligence  is  left  to  the 
jury.' 

It  remains  to  consider  the  specific  phases  under  which 
liability  for  negligence  may  arise :  and  these  are  to  be 
classed  under  two  general  heads  ;  to  wit,  negligence  in  the 
performance  of  contracts,  and  negligence  not  connected 
with  contract.  For  it  is  to  be  understood,  with  regard  to 
the  first  class  of  cases,  that  the  negligent  performance  of  a 
contract,  or  the  unexcused  neglect  to  perform  a  contract, 
is  a  breach  of  dut}'  that  ma}'  be  treated  as  involving  lia- 
bility ex  delicto  or  ex  contractu^  at  the  election  of  the  injured 
party.  2 

Under  the  first  head,  it  will  be  necessary  to  consider  the 
subjects  of  Innkeeper  and  Guest,  Bailor  and  Bailee,  Pro- 
fessional Services,  Telegraph  Companies,  and  the  duties  of 
Agents,  Servants,  Trustees,  Officers,  and  the  Uke,  to  their 
superiors ;  and,  under  the  second  head,  the  Use  of  Prem- 
ises. After  all  of  these  subjects  have  been  examined,  it 
will  remain  to  consider  the  subjects  of  Notice  and  Con- 
tributor}' Neghgence. 

§  2.    Of  Innkeeper  and  Guest. 

With  regard  to  the  duties  of  innkeepers,  it  will  be  almost 
sufficient  in  the  present  connection  to  say  that,  though  it 

^  See  upon  this  subject  Bigelow's  L.  C.  Torts,  589-596. 

2  Marzetti  v.  Williams,  1  Barn.  &  Ad.  415 ;  Doorman  v.  Brown,  11 
Clark  &  F.  1 ;  s.  c.  3  Q.  B.  511 ;  Robinson  v.  Threaclgill,  13  Ired.  39. 
These  cases  appear  to  go  to  the  extent  of  allowing  suit  ex  delicto, 
even  when  there  has  been  no  attempt  to  perform  the  contract. 


264         DUTIES  OF  INDIVIDUALS  INTER  SE.    [Chap.  XVI 

has  sometimes  been  considered  that  for  loss  or  damage  to 
the  goods  of  guests  liabilit}'  depends  upon  the  question  of 
neghgence  in  the  host,  or  in  his  servants  acting  for  him,^ 
it  is  now  more  generally  considered  that  an  innkeeper's 
liability  for  the  failure  to  keep  the  goods  of  his  guest 
safel}',  when  once  deUvered  into  the  former's  custody, 
arises  independently  of  the  question  of  negligence.  By 
the  general  current  of  authority',  the  host  is  liable  for  dam- 
age to  or  loss  of  the  goods  of  his  guest  put  in  his  (the 
host's)  custod}',  though  he  exercised  the  greatest  dihgence 
in  the  care  of  them,  unless  the  loss  occur  b}'  the  guest's 
neghgence,  or  by  vis  major,  inevitable  accident,  or  the  act 
of  God.- 

It  follows,  a  fortiori,  that  the  innkeeper  is  liable  in  case 
of  loss  sustained  b}'  reason  of  his  own  negligence,  or  that  of 
his  servants  ;  but,  inasmuch  as  the  question  of  his  liability 
does  not  turn  upon  the  question  of  negligence,  the  subject 
need  not  be  here  pursued.^ 

It  is  proper,  however,  to  observe  in  this  connection  that, 
if  the  negligence  of  the  guest  occasion  the  loss  in  such  a 
wa}'  that  it  would  not  have  happened  if  the  guest  had 
exercised  the  usual  care  that  a  prudent  man  might  be 
reasonably  expected  to  have  taken  under  the  circumstances, 
the  innkeeper  is  not  liable.* 

1  Dawson  v.  Chamney,  5  Q.  B.  164 ;  Merritt  v.  Claghorn,  23  Vt. 
177 ;  Metcalf  v.  Hess,  14  111.  129. 

2  Armistead  v.  Wilde,  17  Q.  B.  261 ;  Cashill  v.  Wright,  6  EI.  &  B. 
891;  Morgan  v.  Rarey,  6  Hurl.  &  N.  265;  Opperilicim  i\  White  Lion 
Hotel  Co.,  Law  R.  6  C.  P.  515 ;  Shaw  v.  Berry,  31  Maine,  478 ;  Nor- 
cross  V.  Norcross,  53  Maine,  163 ;  Sibley  v.  Aldrich,  33  N.  H.  553 ; 
Manning  v.  Wells,  9  Humph.  746;  Thickstun  i'.  Howard,  8  Blackf. 
535;  Berkshire  Woollen  Co.  v.  Proctor,  7  Cush.  417  ;  Cohen  v.  Frost, 
2  Duer,  341 ;  Piper  v.  Manny,  21  Wend.  282 ;  Ilunlett  v.  Swift,  33 
N.  Y.  571 ;  Wilkins  v.  Earle,  44  N.  Y.  172;  Houscr  v.  Tully,  62  Penn. 
St.  92 ;  Rockwell  i-.  Proctor,  39  Ga.  105.  3  Sce  Chs.  17,  18. 

<  Cashill  V.  Wright,  6  El.  &  B.  891 ;  Oppenheim  v.  White  Lion 
Hotel  Co.,  Law  R.  6  C.  P.  515. 


§  3.]  NEGLIGENCE.  265 

§  3.    Of  Bailor  axd  Bailee. 

So  much  of  the  subject  of  baihiient  as  relates  to  breaches 
of  dut}'  by  common  carriers  belongs  to  the  subsequent 
chapters.  The  habilit}-  of  a  common  canier  is  similar  to 
that  of  an  innkeeper,  and  does  not  turn  upon  the  ques- 
tion of  negligence,  —  the  subject  of  the  present  chapter. 

It  was  long  considered  a  settled  doctrine  of  the  Enghsh 
law  that  the  duty  of  bailees  was  to  be  distributed  under 
three  heads,  having  reference  respectively  to  the  nature  of 
the  bailment ;  to  wit,  (1)  the  duty  to  observe  very  great 
care,  (2)  the  duty  to  observe  ordinary'  care,  and  (3)  the 
duty  to  observe .  sHght  care  only.  Conversely,  therefore, 
the  bailee  was  deemed  to  be  liable  for  loss  sustained  by 
the  bailor,  under  the  first  head,  if  the  bailee  were  guilty  of 
slight  negUgence  ;  under  the  second  head,  if  he  were  guilty 
of  "  ordinary  negligence,"  or  rather  probably  of  negligence 
of  an  intermediate  grade  ;  and,  under  the  third  head,  if  he 
were  guilty  of  gross  neghgence.^ 

The  application  of  these  three  degrees  of  negligence  was 
thus  explained :  If  the  bailment  were  gi-atuitous,  b}-  the 
bailor,  that  is,  for  the  sole  benefit  of  the  bailee,  the  bailee 
was  deemed  to  be  liable  for  loss  or  damage  to  the  subject 
of  the  bailment  occasioned  even  by  slight  neghgence  on  his 
part.  If  the  bailment  were  for  hire,  that  is,  for  the  mutual 
benefit  of  the  bailor  and  the  bailee,  he  was  deemed  to  be 
liable  for  the  consequences  of  negligence  of  an  intermediate 
grade  only.  If  the  bailment  were  without  benefit  to  the 
bailee,  that  is,  if  the  bailor  had  requested  the  bailee  to  take 
care  of  his,  the  foiTner's,  goods  without  reward,  the  bailee 
was  deemed  to  be  liable  for  the  result  of  gi-oss  neghgence 
only.- 

This  doctrine  arose  from  a  misconception  of  the  Roman 

1  Coggs  V.  Bernard,  2  Ld.  Raym.  909;  1  Smith's  L.  C.  188  (7th 
Eng.  ed.).  2  i^. 


266         DUTIES  OF  INDIVIDUALS  INTZll  SE.   [Chap.  XVI. 

law  of  bailment,  the  doctrines  of  which  were  resorted  to  in 
order  to  assist  in  the  solution  of  a  question  which  arose  in 
England  in  the  eighteenth  centur^-.^  But  it  remained  in  the 
English  law  unchallenged  for  so  long  a  period  that  it  has 
not  been  readily  abandoned,  and  it  may  be  still  considered 
as  retaining  somewhat  of  vitahty  in  England,  and  in  various 
parts  of  the  United  States. 

The  tendenc}'  of  authorit}-  at  the  present  time  is  to  break 
away  from  this  didsion  of  neghgence,  and  to  accept  the 
true  doctrine  of  the  Roman  law  in  regard  to  bailments  as 
well  as  in  relation  to  other  subjects  covered  b^'  the  title 
Negligence.  The  effect  is  to  make  the  criterion  of  liability 
to  depend  upon  the  consideration  stated  on  a  preceding 
page  ;  -  to  wit,  whether  the  party  complained  of  conducted 
himself  in  the  particular  situation  as  a  man  of  prudence  or 
carefulness  or  skill,  of  the  same  business,  would  have  con- 
ducted himself,  or  as  prudent  or  careful  or  skilful  men,  of 
the  same  business,  generally  do  conduct  themselves  in  the 
like  situation.^ 

This  criterion  will  indeed  be  often  if  not  generally  found 
to  be  the  real  test  applied  in  those  cases  in  which  the  old 
terms  are  used.  For  example  :  The  defendant,  a  bailee  of 
monej'  to  keep  without  reward,  gives  the  following  account 
of  its  loss :  He  was  a  coffee-house  keeper,  and  had  placed 

'  Coggs  V.  Bernard,  siipra.  The  error  of  Lord  Holt  in  this  famous 
case  has  often  been  pointed  out.  Story,  Agency,  §  184,  note,  Green's 
ed. ;  Wharton,  Negligence,  §  57,  et  seq. 

2  Ante,  p.  261. 

^  As  indicating  the  tendency  to  discard  the  old  theory  of  the  three 
degrees  of  negligence,  see  The  New  World,  70  How.  4G9;  Milwaukee 
R.  Co.  V.  Arms,  91  U.  S.  494;  Wilson  v.  Brett,  11  Mocs.  &  W.  11-3; 
Hinton  v.  Dibdin,  2  Q.  B.  G50 ;  Grill  v.  General  Collier  Co.,  Law  R. 
1  C.  P.  600;  Beal  v.  South  Devon  Ry.  Co.,  3  Hurl.  &  C.  337;  Giblin 
V.  McMullcn,  Law  R.  2  P.  C.  328 ;  Cass  v.  Boston  &  L.  R.  Co.,  14 
Allen,  448;  Lane  v.  Boston  &  A.  R.  Co.,  112  Mass.  4')5;  Briggs  v. 
Taylor,  28  Vt.  180. 


I 


§  3.1  NEGLIGENCE.  267 

the  monej'-  in  question  in  his  cash  b.ox  in  the  tap-room, 
which  liad  a  bar  in  it,  and  was  open  on  Sundaj' ;  and  on  a 
Sunda}'  the  cash  box  was  stolen.  The  defendant's  liability 
turns  upon  the  question  whether  he  has  taken  such  care  of 
the  plaintiff's  mone}'  as  a  reasonable  man  would  ordinarily 
take  of  his  own  ;  if  not,  he  is  deemed  to  be  guilt}-  of  "  gross 
negligence"  and  liable  for  the  loss.^  Again  :  The  defend- 
ants receive  a  deposit  from  a  stranger,  S.,  to  be  kept  with- 
out reward.  Subsequently  another  stranger  calls  for  the 
bonds,  representing  himself  to  be  S.,  the  depositor.  The 
judge  instructs  the  jury  that,  if  the  defendants  are  guilty 
of  want  of  "ordinary  care"  under  all  the  circumstances, 
they  are  liable,  otherwise  not.  The  instruction  is  correct, 
being  equivalent  to  a  ruling  that  the  defendants  are  liable 
for  gross  negligence  only.^  Again  :  The  defendants  receive 
a  deposit  of  debentures  to  be  kept  without  reward,  and  the 
cashier  of  the  bank  fraudulent!}-  abstracts  the  same  and 
makes  away  with  them.  The  defendants  are  liable  if  they 
have  failed  to  exercise  "ordinary  care,"  which  means  a 
failure  to  exercise  that  ordinar}-  diligence  which  a  reason- 
ably prudent  man  takes  of  his  own  property  of  the  like 
description.^ 

The  foregoing  are  examples  of  liability  in  cases  of  cus- 
tody without  compensation  ;  but  the  same  principles  pre- 
vail in  cases  of  deposit  for  hire.  For  example :  The 
defendants,  warehousemen  for  hire,  lose  by  theft  the  plain- 
tiff's property  while  the  same  is  in  their  custod}-.  They 
have  exercised  the  same  degree  of  care  over  the  property 
that  is  usually  exercised  in  the  vicinity  b}'  other  like  ware- 

1  Doorman  r.  Jenkins,  2  Ad.  &  E.  256.  Tlie  question,  it  will  be 
seen,  was  not  whether  the  defendant  had  taken  the  same  care  of  the 
money  that  he  took  of  his  own. 

-  Lancaster  Co.  Bank  v.  Smith,  62  Pcnn.  St.  47.  See,  also,  the 
language  of  the  court  in  Foster  v.  Essex  Bank,  17  Mass.  479,  486. 

8  Giblin  v.  McMullen,  Law  R.  2  P.  C  317. 


268         DUTIES  OF  INDIVIDUALS  INTER  SE.    [Chap.  XVI. 

housemen.  The  defendants  are  not  liable,  having  exer- 
cised "ordinary  care."^  Again:  The  defendants,  ware- 
housemen in  a  large  city,  receive  for  reward  from  the 
plaintiffs,  a  large  quantity  of  salt  in  barrels,  which  they 
store  in  a  loose  frame  warehouse,  situated  on  an  alley,  back 
of  their  business  house.  Of  the  whole  amount,  about  two 
hundred  and  forty  barrels  are  stolen  ;  and  it  is  afterwards 
discovered  that  the  theft  had  been  going  on  at  inteiTals  for 
a  month.  It  was  effected  by  entering  through  an  opening 
in  the  side  of  the  building,  a  plank  being  off,  and  then 
opening  the  aUey  door,  and  rolling  out  the  barrels.  Dra3's 
were  thus  loaded  earl}'  in  the  morning,  sometimes  before 
sunrise,  sometimes  a  little  after ;  the  defendants  having  no 
watchmen  there.  The  defendants  are  hable  for  failing  to 
use  "  ordinary  care  or  diligence  ; "  though  it  appear  that  it 
is  usual  in  the  city  of  the  defendants  to  pile  such  barrels  in 
open  sheds,  or  on  vacant  lots,  or  on  the  sidewalk,  or  occa- 
sionally in  warehouses  such  as  the  one  in  question,  —  some 
supervision  or  examination  of  the  premises  being  reason- 
ably required  in  the  course  of  a  month. ^ 

The  result,  therefore,  of  the  general  current  of  authority 
is,  that  the  terms  "  gi'oss  negligence,"  or  "negligence," 
are,  with  regard  to  goods  bailed,  now  used  to  prescribe  lia- 
bility where  the  defendant  or  his  servants  have  not  taken 
the  same  care  of  the  property  intrusted  to  them  as  a  pru- 
dent man  would  have  taken  of  his  own  in  the  same  situa- 
tion.' Or  as  it  has  recentl}'  been  laid  down  by  judicial 
authority  :  For  all  practical  purposes  the  rule  may  be  stated 
to  be,  that  the  failure  to  exercise  reasonable  care,  skill,  and 
diligence,  is  "gross negligence."  AVhat  is  reasonable,  varies 

1  Cass  V.  Boston  &  L.  U.  Co.,  14  Allen,  448.  See  Lane  v.  Boston 
&  A.  R.  Co.,  112  Mass.  455. 

2  Chenowith  v.  Dickinson,  8  B.  Mon.  150. 

8  Briggs  V.  Taylor,  28  Vt.  180;  Duff  v.  Budd,  3  Brod.  &  B.  177; 
Riley  v.  Home,  5  Bing.  217 ;  Batson  v.  Donovan,  4  Barn.  &  Aid.  432. 


§  .3. J  NEGLIGENCE.  209 

in  the  case  of  a  gi'atuitous  bailee  and  that  of  a  bailee  for 
hire.  From  the  former  are  reasonabh"  expected  such  care 
and  diligence  as  persons  ordinarily'  use  (that  is,  careful 
persons)  in  their  own  affairs,  and  such  skill  as  he  has. 
From  the  latter  are  reasonably  expected  care  and  dihgence 
such  as  are  exercised  in  the  ordinary  and  proper  course  of 
similar  business,  and  such  skill  as  he  ought  to  have  ;  namely, 
the  skill  usual  and  requisite  in  the  business  for  which  he 
receives  payment.^ 

Thus  far  of  a  bailment  for  custody  (locatio  custodice) ,  or 
for  hire  {locatio  rei) ,  or  the  like.  WTiere  the  bailment  re- 
quires the  perforaiance  of  services  upon  chattels  {locatio 
operis) ,  the  rule  with  regard  to  diligence  is  similar.  The 
bailee  is  bound  to  exercise  ordinary  diligence  ;  to  wit,  the 
diligence  of  a  prudent  man  of  the  same  occupation,  and 
under  the  same  circumstances.  He  is  also  bound  to  exer- 
cise a  fair  average  degree  of  skill  in  relation  to  the  business 
which  he  undertakes ;  to  do  his  work  in  a  workmanlike 
manner  ;  and  to  be  possessed  of  sufficient  skill  to  execute 
it.  He  is  therefore  liable  if  he  either  make  an  engagement 
without  sufficient  skill  to  execute  it,  or  if,  possessing  the 
adequate  skill,  he  do  not  exercise  it.  For  example  :  The 
defendant  hires  a  horse  of  the  plaintiff  which  becomes 
slightly  sick.  The  defendant,  not  being  a  farrier,  there- 
upon prescribes  improperly  for  the  horse,  and  the  medicine 
kills  it.  This  is  a  breach  of  duty  to  the  plaintiff,  a  farrier 
being  near  at  hand  at  the  time.'^  Again  :  The  defendant, 
a  builder  of  houses,  undertakes  for  the  plaintiff  to  rebuild 
a  good  and  substantial  front  to  his  house,  but  he  builds  the 
same  so  out  of  perpendicular  that  it  must  be  taken  down. 
The  defendant  is  liable  in  an  action  for  negligence.^ 

•  Beal  V.  South  Devon  Ry.  Co.,  3  Hurl.  &  C.  337,  Exch.  Ch., 
Crompton,  J.,  speaking  for  tlie  court.  See,  also,  language  to  the 
same  effect  by  Redfield,  C.  J.,  in  Briggs  v.  Taylor,  28  Vt.  180. 

^  Dean  v.  Keate,  3  Campb.  4. 

3  Earns  worth  v.  Garrard,  1  Carapb.  38. 


270  DUTIES  OF  INDIVIDUALS  INTER  SE.   [Chap.  XVL 

The  degi-ee  of  skill  and  diligence  which  is  required  rises 
in  proportion  to  the  value,  the  delicacy,  and  the  difficulty 
of  the  operation.  A  workman  employed  to  repair  a  very 
delicate  mathematical  instrument  is  expected  to  exert  more 
care  and  skill  than  would  be  required  about  an  ordinary 
undertaking.^  The  criterion  of  liability,  however,  still  re- 
mains the  same :  if  all  things  are  done  b}'  the  workman 
which  a  diligent  and  skilful  workman  in  the  same  situation 
and  business  would  do,  he  will  be  exonerated  from  liability 
though  the  instrument  be  fractured.^ 

It  should  be  observed,  however,  with  regard  to  cases 
requiring  the  exercise  of  skill,  that  a  biiilee  is  not  to  be 
required  to  possess  extraordinary  skill,  such  as  is  pos- 
sessed b}- but  few  persons  only  in  the  particular  business, 
but  only  a  fair  average,  or  ordinary',  degree  of  skill ;  unless, 
indeed,  he  engage  to  possess  extraordinary  ability.  In  the 
absence  of  agreement  or  false  representations,  reasonable 
skill  constitutes  the  measure  of  the  engagement  of  the 
workman  in  regard  to  the  thing  undertaken,^ 

On  the  other  hand,  the  bailee  emplo^'ed  to  do  a  work 
(probably)  is  not  liable  for  failing  to  possess  the  requisite 
skill  for  the  work,  if  he  has  not  held  himself  out  as  possess- 
ing such  skill.  It  is  the  bailor's  fault  if  he  intrust  a  work 
requiring  the  exercise  of  skill  to  one  whom  he  knows  to  be 
without  that  skill.  For  example  :  The  defendant,  a  matter, 
is  emploj-ed  by  the  plaintiff,  with  notice,  to  embroider  a 
fine  carpet,  and  the  defendant  spoils  the  materials  put  into 
his  hands  by  the  plaintiff  for  the  purpose.  This  is  no 
breach  of  duty,  the  defendant  not  having  represented  him- 
self as  competent  for  such  worlc* 

It  is  further  to  be  observed  that  if  the  loss  or  ill  execu- 
tion be  not  properl}^  attributable  to  the  fault  or  unskilful- 
ness  of  the  workman,  or  of  his  sex'vants,  but  arise  from  an 

1  Story,  BaiUnents,  §  432.  ^  pt,. 

8  lb.  §  433.  4  lb.  §  436. 


§  4.]  NEGLIGENCE.  271 

iuberent  defect  in  the  thing  npon  which  the  work  is  done, 
the  bailor,  having  furnished  the  materials,  cannot  treat  the 
bailee  as  guilty  of  negligence.^  But  if  the  materials  were 
furnished  by  the  bailee,  and  the  result  were  a  failure  to 
perform  the  contract  altogether,  or  a  failure  to  perform  it 
within  the  time  agreed  upon,  the  bailee  would  be  liable ; 
unless  perhaps  the  materials  required  by  the  bailor  were 
such  as  he  (the  bailee)  was  not  familiar  with,  and  he  had 
exercised  such  skill  as  he  possessed  in  the  management  of 
them,  the  risk  being  taken  by  the  bailor.^ 

§  4.    Of  Professional  Services. 

The  only  difference  between  the  case  presented  in  the 
present  section  and  that  in  the  last  half  of  the  preceding  is 
that  there  is  now  no  bailment  of  goods  to  be  wrought  upon. 
The  rules  of  law  with  regard  to  the  dut}'  of  the  person  em- 
ployed are  not  materially  different  from  those  above  pre- 
sented. To  render  a  professional  man  liable  for  negligence, 
it  is  not  enough  that  there  has  been  a  less  degree  of  skill 
than  some  other  professional  men  might  have  shown. 
Extraordinary  skill  is  not  required  unless  professed  or  con- 
tracted for  :  a  fair  average  degree  of  skill  is  all  that  can  be 
insisted  on.  Or,  as  it  has  been  laid  down,  a  person  who 
enters  a  learned  profession  undertakes  to  bring  to  the  ex- 
ercise of  his  business  simpl}-  a  reasonable  degree  of  skill 
and  care.  He  does  not  undeilake,  if  an  attorney,  that  he 
will  gain  a  cause  at  all  events  ;  or,  if  a  physician,  that  he 
will  effect  a  cure.^ 

For  special  illustration  of  the  application  of  this  doc- 
trine, the  nature  of  the  liability  of  attorneys  and  of  medi- 
cal men  for  negligence  ma}^  be  taken. 

1  lb.  §  428  a. 

2  In  the  latter  case,  the  bailor  might  himself  be  liable  to  the 
bailee. 

3  Lamphier  v.  Pliipos,  8  Car.  &  P.  475,  Tindal,  C.  J.;  Hart  v. 
Frame,  0  Clark  &  F.  193,  210. 


272         DUTIES  OF  INDIVIDUALS  INTER  SE.    [Chap.  XVL 

Every  client  has  a  right  to  require  the  exercise,  on  the 
part  of  his  attorney,  of  care  and  diligence  in  the  perform- 
ance of  the  business  intrusted  to  him,  and  to  a  fair  average 
degree  of  professional  skill  and  knowledge  ;  and  if  an  attor- 
ney  have  not  as  much  of  these  qualities  as  he  ought  to  pos- 
sess, or  if,  having  them,  he  neglect  to  employ  them  without 
valid  excuse,  the  law  makes  him  liable  for  any  loss  which 
may  have  been  sustained  thereby  by  his  client.-' 

Hence  an  attorney  possessed  of  a  reasonable  amount  of 
information  and  sldll,  according  to  the  duties  which  he 
undertakes  to  perforai,  and  exercising  what  he  possesses 
with  reasonable  care  and  diligence  in  the  affairs  of  his 
client,  is  not  liable  for  errors  in  judgment,  whether  in 
matters  of  law  or  of  discretion,  unless  he  profess  to  have 
the  highest  order  of  skill. 

It  is  clear,  however,  that,  when  an  injur}'  has  been  sus- 
tained which  could  not  have  happened  except  from  the 
want  of  reasonable  skill  and  dihgence  on  the  part  of  the 
attorney,  the  law  holds  him  liable.  To  take  proceedings 
upon  a  wrong  statute,  when  there  is  no  question  of  doubtful 
construction  involved,  would  be  evidence  of  negligence 
under  this  rule.  For  example  :  The  defendant,  an  attorney, 
is  employed  to  take  statutory  proceedings  on  behalf  of  the 
plaintiffs  against  their  apprentices  for  misconduct.  The 
defendant  proceeds  upon  a  section  of  the  statute  relating 
to  servants  and  not  to  apprentices.  This  is  deemed  such 
a  want  of  skill  or  diligence  as  to  render  the  attorney  hable 
to  repay  to  the  plaintiffs  the  damages  and  costs  incurred 
bj'  his  mistake.^ 

If  an  attorney  have  doubt  as  to  the  legal  effect  of  an 
instrument  in  which  his  client  is  concerned,  and  submit 
the  question  to  counsel  for  advice  on  which  to  act,  he  must 
lay  the  facts  correctly  before  the  counsel.      If,  instead  of 

1  Saunders,  Negligence,  155. 

2  Hart  V.  Frame,  G  Clark  &  F.  193. 


§  4.]  NEGLIGENCE.  273 

la^-ing  the  case  and  facts  fully  before  the  counsel,  he 
attempt  to  state  inferences  from  the  facts,  he  acts  at  his 
peril.  The  counsel  should  be  permitted  to  draw  his  own 
inferences.  For  example :  The  defendant,  a  lawj'cr,  em- 
ployed b}'  the  plaintifl',  seeking  counsel  of  another  lawj'er, 
misstates  the  legal  effect  of  certain  deeds  not  accompany- 
ing the  case,  whereb}^  he  (the  defendant)  receives  and  acts 
upon  incorrect  advice,  to  the  damage  of  his  client.  This 
is  evidence  of  negligence  for  which  he  is  liable.^ 

In  the  like  exercise  of  due  care  and  skill,  an  attorney 
employed  to  investigate  the  title  to  an  estate,  or  to  seek 
out  an  eligible  investment  and  obtain  security  for  mone}' 
advanced,  must  examine  the  title  to  and  extent  of  the 
securit}'  offered ;  and  even  then  if  the  title  prove  obviously 
defective,  or  the  security  prove  evidentl}'  bad  or  insufficient, 
he  will  be  liable.^ 

The  authorities  finally  appear  to  establish  the  rule  that 
an  attorney  is  hable  for  the  consequences  of  ignorance  or 
non-observance  of  the  rules  of  practice  of  court,  for  the 
want  of  care  in  the  preparation  of  a  cause  for  trial,  or  of 
attendance  thereon  with  his  witnesses,  and  for  the  mis- 
management of  so  much  of  the  conduct  of  the  cause  as  is 
usually  allotted  to  his  department  of  the  profession.  On 
the  other  hand,  he  is  not  answerable  for  error  in  judgment 
upon  points  of  new  occurrence,  or  of  nice  or  doubtful  con- 
struction, or  of  such  as  are  usually  submitted  to  one  in  the 
highest  walks  of  the  legal  profession.^ 

To  render  a  medical  man  liable  for  negligence,  there 
must  likewise  appear  to  have  been  a  failure  to  exercise 
such  diligence  or  skill  as  a  prudent  medical  man  of  fair 
ability  would  have  exercised  under  the  same  circumstances. 

1  Ireson  v.  Pearman,  3  Barn.  &  C.  799. 

2  Kniglit  V.  Quarlcs,  4  Moore,  532 ;  Whitehead  v.  Greetham,  10 
Moore,  183 ;  Donaldson  v.  Haldane,  7  Clark  &  F.  7G2. 

8  Godefroy  v.  Dalton,  6  Bing.  460. 
18 


274         DUTIES  OF  INDIVIDUALS  INTER  SE.    [Chap.  XVI. 

The  degree  of  diligence  required  will  be  proportionate  to 
the  nature  of  the  case ;  and,  in  some  cases,  nothing  short 
of  the  highest  degree  of  dihgence  can  be  excusable.     As 
to  the  sUll  to  be  exercised,  however,  nothing  more  than  a 
fair  and  reasonable  degree  can  be  insisted  upon :  the  law 
does  not  require  the  exercise  of  the  highest  order  of  medi- 
cal ability,  unless  the  part}'  has  held  himself  out  as  pos- 
sessed of  it.     For  example  :  The  defendant,  a  physician, 
is  retained  as  accoucheur  to  attend  the  plaintiff's  wife, 
and  the  plaintiff  charges  that  he  failed  to  use  due  and  proper 
care  and  skill  in  the  treatment  of  the  lady,  whereby  she 
was  injured.     The  judge  instructs  the  jury  that  it  is  not 
enough  to  make  the  defendant  hable  that  some  medical 
men,  of  far  greater  experience  or  ability,  might  have  used 
a  greater  degree  of  skill,  nor  that  even  he  might  possibly 
have  used  some  gi-eater  degree  of  care.     The  question  to 
be  decided  is,  whether  there  has  been  a  want  of  compe- 
tent care  and  skill  to  such  an  extent  as  to  lead  to  the  bad 
result.^   Again  :  The  defendant,  a  surgeon,  is  employed  by 
the  plaintiff  to  treat  an  injury  done  to  his  hand  and  wrist ; 
and  the  plaintiff  charges  that  he  conducted  himself  in  the 
business  in  such  a  careless,  negligent,  and  unskilful  manner, 
that  the  plaintiff's  hand  became  withered,  and  was  likely 
to  become  useless.     The  judge  instructs  the  jury  that  the 
question  for  them  to  decide  is,  whether  they  are  satisfied 
that  the  injury  sustained  is  attributable  to  the  want  of  a 
reasonable  and  proper  degree  of  care  and  skill  in  the  de- 
fendant's treatment.      The  defendant's  business  did   not 
require  him  to  undertake  to  perform  a  cure,  nor  to  use  the 
highest  possible  degree  of  skill.^     Again  :  The  defendant, 
a  surgeon,  is  employed  b}'  the  plaintiff  to  treat  a  violent 
fracture  of  the  latter's  arm,  and  is  charged  with  malprac- 

1  Ricli  V.  Pierpont,  3  Fost.  &  F.  35. 

■-i  Lampliier  v.  I'liipos,  8  Car.  &  P.  475.     These  two  cases,  though 
at  nisi  prius,  are  often  referred  to  as  authority. 


§  5,]  NEGLIGENCE.  275 

tice,  resulting  in  serious  and  permanent  injur}'  to  the 
plaintiff.  The  judge  instructs  the  jurj'  that  a  surgeon 
contracts  with  those  who  emplo}'  him  that  he  has  such 
skill  and  knowledge  as  will  enable  him  properly  and  judi- 
cioush*  to  perform  the  duties  of  his  calling.  The  law  does 
not,  however,  require  the  highest  degree  of  skill  and 
knowledge,  but  only  such  a  reasonable  degree  as  will  enable 
the  person  safely  and  discreetly  to  discharge  the  duties 
assumed.     The  instruction  is  deemed  correct.^ 

If  the  patient,  b}'  refusing  to  adopt  the  remedies  of  the 
ph^'sician,  frustrate  the  latter's  endeavors,  or  if  he  aggra- 
vate the  case  by  his  own  misconduct,  he,  of  course,  cannot 
hold  the  ph^'sician  liable  for  the  consequences  attributable 
to  such  action.  Still  if,  after  such  misconduct,  the  ph}'- 
sician  continue  to  treat  the  patient,  he  will  be  liable  for 
any  injury  sustained  by  reason  of  his  own  negligence  in 
such  subsequent  treatment.^ 

It  should  further  be  observed,  with  regard  (probabl}') 
to  all  cases  of  the  performance  of  services,  that,  for  an 
injur}'  occasioned  by  the  want  of  common  care  or  skill  in 
doing  what  has  been  undertaken,  an  action  may  be  main- 
tained in  favor  of  the  part}'  relying  upon  the  undertaking 
and  injured  by  the  breach  of  it,  though  there  was  no  con- 
sideration therefor.' 

§  5.    Op  Telegraph  Companies. 

Telegraph  companies  are  bound  to  exercise  reasonable 
diligence  and  care  in  the  transmission  of  messages,  and 
are  liable  to  the  senders  for  any  failure  to  conform  to  the 

1  Wood  V.  Clapp,  4  Sneed,  65. 

*  Hibbard  v.  Thompson,  109  Mass.  288;  Wharton,  Negligence, 
§737. 

8  Gill  V.  Middleton,  105  Mass.  479.  See,  however,  Ritchey  v. 
West,  23  111.  385,  holding  that  a  physician  is  liable  only  for  gross 
negligence  if  the  service  be  gratuitous.     Sed  qucere. 


276         DUTIES  OF  INDIVIDUALS  INTER  SE.    [Chap.  XVL 

requirements  of  this  duty.  They  are  not  insurers  of  the 
correct  transmission  of  despatches.^ 

They  are,  however,  hound  to  deliver  the  precise  mes- 
sage given  them  for  transmission  (when  it  is  legibly 
written),  and  for  a  failure  to  do  so  the}"  are  liable,  in  the 
absence,  at  least,  of  a  rule  requiring  the  message  to  be 
repeated  by  the  receiver,  and  this,  too,  even  in  the  face 
of  a  notice  to  the  contrary ;  unless  the  error  was  caused 
by  the  condition  of  the  atmosphere,  or  by  some  other 
obstacle,  without  fault  on  the  part  of  the  telegraph  com- 
pany. For  example  :  The  defendants  receive  a  message 
from  the  plaintiffs  for  transmission  at  night,  ordering  a 
cargo  of  corn  at  a  price  named  by  the  owner.  The  mes- 
sage is  wa'itten  upon  a  blank  of  the  defendants,  at  the  top 
of  which  is  a  declaration  that  the  defendants  are  not  to 
be  liable  for  mistakes,  or  delays,  or  non-delivery  be^'ond 
the  sum  paid  for  the  message.  The  message  is  sent ;  but, 
by  reason  of  negligence,  it  is  not  correctl}' delivered,  and  the 
plaintiffs  fail  to  obtain  the  corn  at  the  price  named,  the 
grain  having  directly  advanced  in  price.  The  defendants 
are  liable,  the  notice  being  unreasonable.^ 

A  condition  that  the  telegraph  company'  shall  not  be 
liable  to  the  sender  of  a  despatch  for  a  mistake  in  it,  unless 
the  message  shall  be  repeated  by  the  receiver,  is,  how- 
ever, reasonable  and  valid,  though  referred  to  as  among 
the  conditions  on  the  back  of  the  blank  used  by  the  sender, 
and  though  it  be  not  read.''  And  the  same  is  true  of  a 
condition  that  the  telegraph  company  shall  not  be  liable 

1  Western  Union  Tel.  Co.  v.  Carew,  15  Mich.  525,  533 ;  Brcese  v. 
United  States  Tel.  Co.,  48  N.  Y.  132 ;  Playford  v.  United  Kingdom 
Tel.  Co.,  Law  R.  4  Q.  B.  700,  710. 

2  See  True  v.  International  Tel.  Co.,  60  Maine,  9.  The  message 
was  not  delivered  at  all  in  this  case. 

8  Brecse  v.  United  States  Tel.  Co.,  48  N.  Y.  132 ;  Wolf  v.  Western 
Union  Tel.  Co.,  62  Penn.  St.  83;  Ellis  v.  American  Tel.  Co.,  13 
Allen,  226 ;  Western  Union  Tel.  Co.  v.  Carew,  16  Mich.  '525. 


I 


§  C]  NEGLIGENCE.  277 

for  mistakes  occurring  on  other  lines,  in  the  course  of 
transmitting  a  message,  though  the  first  company  receive 
pay  for  the  entire  transmission.^  But  it  is  held  that  a 
condition  that  the  company  shall  not  be  liable  for  mistakes 
or  dela3-s  in  transmitting  despatches  applies  merely  to  the 
transmission,  and  not  to  dela^^s  in  delivering  thcm.-^ 

It  is  proper,  in  this  connection,  to  observe  that,  by  the 
American  law,  the  telegraph  company  is  also  liable  to  the 
person  to  whom  the  message  is  transmitted,  upon  delivery 
thereof,  in  case  of  an  error  in  transmission  attributable  to 
the  fault  of  the  company,  when  the  error  is  attended  with 
damage  to  the  person  receiving  it ;  •''  though  the  rule  is 
otherwise  in  England.^  But  the  telegraph  company  is 
(probably)  under  no  liability  to  the  person  to  whom  a 
message  is  addressed  for  a  failure,  however  negligent,  to 
deliver. 

§  6.  Of  the  Liability  of  Agents,  Servants,  Trustees, 
Officers,  and  the  Like  to  their  Superiors. 

The  test  of  the  liabilit}-  of  an  agent  to  his  principal  for 
damage  done  by  reason  of  alleged  negligence  is  the  con- 
duct of  a  prudent  or  careful  or  skilful  agent  in  the  like 
situation.  If  the  agent's  action  conform  to  this  standard, 
he  will  be  exempt  from  Uability  ;  otherwise  not. 

1  Western  Union  Tel.  Co.  v.  Carew,  supra. 

2  Bryant  v.  American  Tel.  Co.,  1  Daly,  575. 

8  New  York  &  W.  Tel.  Co.  v.  Dryburg,  35  Penn.  St.  298;  Elwood 
r.  Western  Union  Tel.  Co.,  45  N.  Y.  549;  Ellis  >:  American  Tel.  Co., 
13  Allen,  226.  The  ground  of  liability  is  variously  stated.  See 
Bigelow's  L.  C.  Torts,  621,  et  seq.  A  valid  ground  appears  to  be, 
that  the  defendants  are  to  be  treated  as  having  made  to  the  plaintiff 
a  false  representation  of  their  authority  from  the  sender  to  deliver 
the  message.  May  v.  Western  Union  Tel.  Co.,  112  Mass.  90;  ante, 
p.  20. 

*  Playford  v.  United  Kingdom  Tel.  Co.,  Law  R.  4  Q.  B.  706.  The 
English  courts  hold  that  the  only  duty  owed  by  the  telegraph  com- 
pany is  to  the  sender  of  the  message. 


278         DUTIES  OF  INDIVIDUALS  INTER  SE.    [Chap.  XVL 

In  accordance  with  this  principle,  it  is  held  not  neces- 
sary, in  order  to  fix  the  hability  of  a  factor  to  his  principal 
for  damage,  to  prove  that  the  factor  has  been  guilty  of 
fraud  or  of  such  gross  negligence  as  would  carry  with  it  a 
presumption  of  fraud.  The  factor  is  required  to  act  with 
reasonable  care  and  prudence  in  his  emplo3'ment,  exercis- 
ing his  judgment  after  proper  inquiry  and  precautions.  If 
the  exercise  of  ordinary  diligence  on  his  part  would  have 
prevented  the  loss,  he  will  be  liable  ;  otherwise  not.  For 
example  :  The  defendants,  factors,  are  directed  by  the  plain- 
tiff, their  principal,  to  remit  in  bills  the  amount  of  funds  in 
their  hands.  They  do  so  in  the  bills  of  persons  who  at  the 
time  are  in  good  credit  in  the  place  in  which  the  factors 
reside,  though  not  in  the  place  of  residence  of  the  plaintiff. 
If  they  have  not  notice  of  the  latter  fact,  the  defendants 
are  not  liable  ;  due  diligence  not  requiring  them  to  make 
inquir}'  of  the  credit  of  the  parties  to  the  bills  of  the  place 
of  residence  of  the  principal,  when  they  are  of  good  credit 
at  the  place  of  residence  of  the  factors.-'  Again  :  The  de- 
fendants, factors,  are  requested  to  remit  to  the  plaintiff, 
their  principal,  in  bills.  The}^  remit  in  the  bills  of  R.  and 
'B.,  partners,  the  former  residing  at  the  place  of  residence 
of  the  defendants,  the  latter  at  the  place  of  residence  of  the 
plaintiff,  to  the  latter's  knowledge.  R.  and  B.  have  houses 
of  business  at  both  places.  R.  (the  non-resident  party)  is 
in  good  credit  at  the  defendant's  place  of  residence,  but  B. 
(the  resident  party)  is  not.  The  defendants  are  liable 
whether  they  knew  B.'s  standing  or  not ;  being  bound  to 
make  inquiry''  as  to  him."^ 

In  accordance  with  the  same  principle,  an  agent  acting 
in  good  faith  is  not  to  be  held  liable  if  in  time  of  danger 
and  difficulty  he  make  the  best  disposition  in  his  power  for 
the  preservation  of  money  in  his  charge,  though  it  involve 
the  exchange  of  funds  of  a  less  portable  for  those  of  a  more 

*  Leverick  v.  Meigs,  1  Covven,  645.  ^  Dj. 


§  G.]  NEGLIGENCE.  279 

portaljle  kind.  For  example  :  The  defendant,  as  agent  for 
the  sale  of  lands  for  the  plaintiff,  becomes  possessed  of 
money  of  the  plaintiff  in  time  of  war  and  in  proximity  to 
the  scene  of  conflict ;  the  defendant  residing  on  one  side 
of  the  line  of  conflict  and  the  plaintiff  on  the  other.  The 
monej-  cannot  be  safely  transmitted  to  the  plaintiff,  or 
safely  deposited  in  any  bank,  and  the  defendant,  having  a 
considerable  amount  thereof  in  small  bank-notes,  exchanges 
the  same  for  larger  notes  of  the  currency  generally  in  use 
where  he  is,  so  as  to  reduce  the  bulk  of  the  funds  to  be  car- 
ried about  his  person,  and  to  enable  him  to  keep  them  the 
more  securely.  The  currenc}^  for  which  the  small  notes  were 
taken  becomes  worthless  in  the  defendant's  hands.  He  is 
not  liable  for  the  loss,  having  exercised  due  diligence  in 
the  matter.^ 

Extraordinary'  emergencies  ma}-  arise  in  which  a  person 
who  is  an  agent  may,  from  the  very  necessities  of  the  case, 
be  justified  in  assuming  extraordinar}'  powers  ;  and  his  acts 
fairly  done  under  such  circumstances  will  be  deemed  law- 
ful.^ On  tlie  other  hand,  it  seems  clear  that  the  presence 
of  such  emergencies  ma}-  not  only  justify,  but,  in  the  light 
of  prudence,  even  demand  the  resort  to  extraordinarj-  mea- 
sures. Ordinarily  it  is  proper  and  (probably)  necessary  for 
an  agent  to  deposit  the  funds  of  his  principal  in  bank  ;  ^  but 
if  a  hostile  army  were  approaching  the  place  at  the  time,  to 
the  knowledge  of  the  agent,  prudence  would  require  him  to 
make  some  other  and  unusual  disposition  of  the  funds.'* 

The  duty  of  an  agent  employed  to  procure  insurance  is 
to  take  care  that  the  policy  is  executed  so  as  to  cover  the 
contemplated  risk  ;  and  to  this  end  he  is,  of  course,  bound 
to  possess  and  use  reasonable  skill.     The  agent  is  also  to 

1  Wood  V.  Cooper,  2  Heisk.  441. 
'^  Story,  Agency,  §  141. 
8  Heckert's  Appeal,  69  Penn.  St.  2G4. 
*  See  Wood  v.  Cooper,  supra. 


280         DUTIES  OF  INDIVIDUALS  INTER  SE.   [Chap.  XVI. 

take  care  that  the  underwriters  are  in  good  credit ;  though 
it  is  enough  that  they  are  at  the  time  in  good  repute.^ 

What  is  the  proper  exercise  of  due  dihgence  and  skill  in 
such  cases  is  sometimes  a  matter  of  great  nicet}'.  On  the 
one  hand,  an  agent  who  acts  bunajide  in  effecting  insurance 
for  his  principal,  using  reasonable  skill  and  diligence,  is  not 
liable  to  be  called  to  account,  though  the  insurance  might 
possibly  have  been  procured  from  other  underwriters  on 
better  terms,  or  so  as  to  include  additional  risks,  by  which 
the  principal  might,  in  the  event  of  loss  b}'  those  risks, 
have  been  indemniiied.^  On  the  other  hand,  an  agent  in 
the  lilie  case  is  bound  to  have  inserted  in  the  policy  all  the 
ordinary  risks  commonly  covered  ;  and  if  he  omit  to  have 
them  inserted  when  a  reasonable  attention  to  his  business 
and  the  objects  of  the  insurance  would  have  induced  other 
agents,  of  reasonable  skill  and  dihgence,  to  have  them  in- 
serted, he  will  be  liable  for  negligence  in  case  of  loss.' 
And  the  same  will  be  true  if  he  negligently  or  wilfully  con- 
ceal a  material  fact  or  make  a  material  misrepresentation 
whereby  the  policy  is  afterwards  avoided.* 

In  an}'  case,  if  it  should  appear  that,  even  if  the  duty 
expected  had  been  performed  with  proper  care,  the  princi- 
pal could  have  derived  no  benefit  therefrom  either  because 
the  result  would  have  been  contrary  to  express  law  or  to 
public  policy  or  to  good  morals,  the  negligence  of  the 
agent  or  other  party  acting  in  the  matter  is  not  a  breach 
of  duty.^ 

Servants  also  are  bound  to  take  due  care  of  their  masters* 
interests,  so  far  as  intrusted  to  them.  If  a  servant  be 
guilty  of  a  failure  to  exercise  such  care  or  skill  or  prudence 

1  Story,  Agency,  §  187. 

2  lb.  §  191 ;  Moore  v.  Morgue,  Cowp.  479. 

8  Story,  Agency,  §  191 ;  Park  v.  Hammond,  6  Taunt.  495. 
*  Mayhew  v.  Forrester,  5  Taunt.  G15. 
6  Story,  Agency,  §  2:38. 


§  6.]  NEGLIGENCE.  281 

as  a  cllligent  servant  would  exercise  under  the  circum- 
stauces,  and  the  master  suffer  damage  thereb}',  the  serA-ant 
will  be  liable  for  a  breach  of  dut}'.  On  the  other  hand,  the 
servant  is  not  bound  to  prevent  loss  to  his  master  at  all 
hazards :  he  is  onl}'  required  to  use  the  care  or  skill  of  a 
diligent  servant.  For  example  :  The  defendant,  a  servant, 
loses  by  theft  of  another  the  goods  of  the  plaintiff,  his  mas- 
ter and  a  carrier ;  but  there  is  no  pi'oof  of  negligence  on 
the  part  of  the  defendant.  The  plaintiff  must  bear  the 
loss.^  Again :  The  defendant,  treasurer  of  the  plaintiffs, 
is  charged  with  a  failure  to  pay  over  to  the  plaintifls  spe- 
cific money  in  his  possession.  He  pleads  that  after  receiv- 
ing the  money,  and  before  the  time  when  he  ought  to  have 
paid  it  or  could  have  paid  it  to  the  plaintiffs,  he  was  robbed 
by  violence  of  the  whole  amount  without  any  default  or 
want  of  due  care  on  his  part.  The  plea  shows  that  the 
defendant  has  not  violated  his  duty  to  the  plaintiffs.^ 

If,  too,  it  should  appear  that  the  principal  or  master, 
upon  a  full  knowledge  of  the  circumstances,  has  deliberately 
ratified  the  acts  or  omissions  complained  of,  he  will  then  be 
compelled  to  overlook  the  breach  of  duty,  and  cannot  recall 
his  condonation  of  the  offence.^ 

A  trustee  is  not  Uable  for  a  loss  which  has  occurred,  if 
he  exercised  common  skill,  prudence,  and  caution.*  In 
considering  whether  a  trustee  has  made  himself  Uable  for 
a  loss,  such  as  one  arising  by  reason  of  a  failure  to  collect 
and  convert  into  monc}'  the  trust  assets,  regard  must  be 
had  to  the  nature  of  the  trust.  A  guardian  is  not  in  ordi- 
nary cases  held  to  such  prompt  action  in  enforcing  the 
collection  of  securities  as  an  executor,  administrator,  or 
assignee  acting  for  the  benefit  of  creditors.     The  duty  of 

1  Savage  v.  Walthew,  11  Mod.  135,  coram  Lord  Holt. 

2  Walker  v.  Guarantee  Assoc,  18  Q.  B.  277. 
8  Story,  Agency,  §  289. 

*  Twaddle's  Appeal,  5  Barr,  15;  Miller  v.  Proctor,  20  Ohio  St.  442. 


282         DUTIES  OF  INDIVIDUALS  INTER  SE.    [Chap.  XVL 

the  former  is  to  bold  and  retain  ;  of  the  latter,  to  collect 
and  prepare  for  distribution.^ 

An  administrator  or  executor  or  assignee  of  an  insol- 
vent should  within  a  reasonable  time  make  proper  efforts 
to  convert  all  the  assets  and  securities  of  the  estate  into 
money  for  distribution.  Failing  to  make  such  eflbrt,  the 
party  is  liable  for  any  loss  to  the  estate  thereb}'  sustained. 
For  example :  The  defendant,  an  administrator,  upon  a 
sale  of  assets,  takes  a  note  -with  securit}-,  payable  in  six 
months,  which  when  it  falls  due  is  good  and  collectible  ;  but 
the  defendant  makes  no  effort  to  collect  it  within  six  mouths 
after  its  maturit}^,  when  it  is  too  late,  the  maker  having 
become  insolvent.  The  defendant  is  guilty  of  a  breach  of 
duty,  and  is  liable  for  the  loss.^ 

Executors  directed  hj  will  to  put  money  at  interest  for  a 
specified  leugth  of  time  b}'  deposit  in  bank  or  loan  upon 
mortgage  have  a  discretion  to  loan  it  for  less  periods  than 
the  whole  time  named,  and  to  reloan  it  from  time  to  time, 
and  change  the  mortgage  securities  as  they  may  deem  best 
for  the  parties  interested.  And  though,  in  so  acting,  the 
executors  are  at  fault  in  taking  insufficient  security'  for  a 
loan  still  if  the}'  afterwards  procure  the  borrower  to  sub- 
stitute therefor  other  securities  deemed  by  them  sufficient, 
and  such  as  they  would  have  been  justified  in  taking  upon 
the  original  loan,  they  will  not  be  deemed  to  have  com- 
mitted a  breach  of  dut}'  so  as  to  be  accountable  for  a  loss 
happening  thi-ough  unforeseen  defects  in  the  latter  security, 
merely  because  of  their  default  in  the  first  instance.  If 
they  have  exercised  due  care  in  the  second  instance,  thej 
are  not  liable  for  the  loss.^ 

1  Chambcrsburg  Sav.  Assoc.  Appeal,  76  Penn.  St.  203;  Cliarl- 
ton's  Appeal,  34  Penn.  St.  473. 

^  Johnson's  Estate,  9  Watts  &  S.  107 ;  Chambcrsburg  Sav.  Assoc. 
Appeal,  supra. 

ii  MUler  V.  Proctor,  22  Ohio  St.  442. 


§  0.]  NEGLIGENCE.  283 

If  the  business  of  the  trustee  be  such  as  to  involve  ques- 
tions of  law,  or  such  as  to  suggest  the  aid  of  legal  counsel, 
due  care  and  diligence  will  require  him  to  obtain  legal 
advice.  But  having  done  so,  and  having  no  reason  to 
suppose  that  the  advice  given  is  incompetent,  the  trustee 
will  be  exonerated  in  acting  thereon.  For  example  :  The 
defendants,  executors  of  an  estate,  under  directions  to 
invest  the  moneys  of  the  estate  on  loan  well  secured, 
apply  to  a  lawyer  of  good  standing  in  another  town  con- 
cerning the  seciu-ity  of  a  mill  in  that  place,  offered  by  a 
person  desiring  to  borrow  money  of  the  defendants,  and 
are  told  that  the  security  is  good ;  and  a  mortgage  of  the 
borrower's  interest  therein  is  accordingl}'  taken.  The  mill, 
however,  is  owned  bj'  the  borrower  and  another  in  partner- 
ship, and  is  liable  for  the  firm  debts.  The  owners  become 
insolvent,  and  the  note  of  a  third  person,  well  secured,  is 
offered  the  defendants  on  condition  of  a  release  of  the 
mortgage.  B}'  advice  of  the  same  lawj-er,  the  offer  is  de- 
clined, and  the  mill  securit}^  is  lost.  The  defendants  are 
not  liable,  having  acted  with  the  prudence  of  men  of  ordi- 
nary- diligence,  care,  and  prudence  in  the  matter.^ 

It  is  settled  law  in  England  and  in  several  of  the 
American  States,  that  due  diligence  on  the  part  of  a 
trustee,  under  directions  to  invest  trust  mone}*,  requires 
him  to  invest  the  fund  in  real  estate  or  government  se- 
curities, or  to  obtain  authority  of  court  to  use  the  money 
otherwise.^ 

Directors  of  corporations  are  bound  to  exercise  the  ordi- 
nary diUgence  of  persons  in  the  same  situation.  They  are 
not  expected  to  devote  theu'  whole  time  and  attention  to 
the  corporation  over  whose  interests  they  have  charge,  and 
are  not  guilty  of  negligence  in  failing  to  give  constant 
superintendence  to  the  business.     Other  officers,  to  whom 

^  Miller  v.  Proctor,  supra. 

2  Hemphill's  Estate,  18  Peun.  St.  303. 


284         DUTIES  OF  INDIVIDUALS  INTER  SE.    [Chap.  XVI. 

compensation  is  paid  for  their  whole  time  in  the  affairs  of 
the  corporation,  have  the  immediate  management.^ 

In  relation  to  those  officers,  the  duties  of  directors  are 
those  of  control ;  and  the  neglect  which  would  render  them 
liable  for  not  exercising  that  control  properl}'  must  depend 
upon  circumstances.  The^^  are  simply  to  exercise  common 
dihgence  over  such  officei-s.  If  nothing,  in  the  exercise  of 
such  diligence,  has  come  to  their  knowledge  to  awaken 
suspicion  concerning  the  conduct  of  the  managing  officers, 
the  directors  are  not  guilt}-  of  negligence,  and  hence  are 
not  liable  for  losses  sustained  by  reason  of  the  misconduct 
of  such  officers.^  Those  officers  are  the  agents  or  servants 
of  the  corporation,  and  not  of  the  directors. 

If,  however,  the  directors  become  acquainted  with  any 
fact  calculated  to  put  prudent  men  on  their  guard,  a  degree 
of  care  commensurate  with  the  evil  to  be  avoided  is  re- 
quired ;  and  a  failure  to  exercise  such  care,  resulting  in 
damage  to  the  corporation  or  to  its  customers,  renders  the 
directors  personally  liable.^  And  the  same  rule  (probably) 
apphcs  to  all  trustees  or  general  officers  having  the  over- 
sight of  subordinate  officers.  But  for  negligence  or  mis- 
conduct, resulting  in  injury  to  the  corporation,  directors 
are  not  liable  at  law  to  individual  stockholders  as  stock- 
holders :  ■*  the  remedy  is  in  equity,  and  to  be  pursued  when 
practicable  by  the  corporation.^ 

With  regard  to  public  officers,  the  fact  that  they  may 
have  contracted  with  the  municipal  or  State  government, 
and  not  with  individuals,  to  perform  their  duties  faithfully, 
does  not  imply  that  they  do  not  also  owe  special  duties  to 

1  Tercy  v.  Millaudon,  20  Mart.  (La.)  68.  ^  ib. 

8  Brewer  v.  Boston  Theatre,  101  Mass.  378. 

4  lb.;  Godbold  v.  Branch  Bank,  11  Ala.  191;  United  Soc.  v.  Under- 
wood, 9  Bush,  609. 

6  Brewer  v.  Boston  Theatre,  supra.  It  is  only  from  necessity,  and 
to  prevent  a  failure  of  justice,  tliat  individual  stockholders  can  pro- 
ceed against  the  directors,  even  in  equity.    Ib. 


§  6.1  NEGLIGENCE.  285 

individuals  in  the  performance  of  their  business.-^  Such 
officers  are  bound  to  exercise  such  dihgence  as  the  nature 
of  their  position  reasonably  demands ;  and  for  a  failure, 
resulting  in  special  damage  to  any  individual,  they  are 
liable  to  him.-  For  example  :  The  defendant,  a  public 
inspector  of  meat,  undertakes,  in  accordance  with  his 
official  duty,  to  cut,  weigh,  pack,  salt,  and  cooper,  for 
export,  a  quantity  of  beef  belonging  to  the  plaintiff,  and 
does  the  same  so  negligentl}'  that  the  meat  becomes  spoiled 
and  worthless.  This  is  a  breach  of  dut}'  to  the  plaintiff, 
and  the  defendant  is  hable  to  him  in  damages.^ 

Officers  and  agents  of  the  general  government,  such  as 
postmasters  and  managers  of  public  works,  are  not  liable 
for  the  negligence  or  other  misconduct  of  their  subordi- 
nates, unless  the  latter  are  the  servants  of  the  former  and 
accountable  to  them  alone.  Government  officers  are,  how- 
ever, liable  for  the  consequences  of  their  own  negligence  ;  * 
and  this  covers  cases  of  negligence  with  respect  to  the  con- 
duct of  such  of  their  subordinates  as  are  under  their  super- 
vision and  giiidance.^  For  example :  The  defendant,  a 
postmaster,  appoints  with  notice  an  incompetent  person  as 
a  clerk  to  the  government  in  his  post-office  ;  and,  by  reason 
of  the  negligence  or  incompetence  of  such  person,  a  letter 
containing  Si 00  belonging  to  the  plaintiff,  is  lost.  The 
defendant  is  liable.*' 

An  individual  cannot,  however,  for  his  own  benefit,  in 
his  own  name,  maintain  a  suit  against  another  for  negli- 

i  Henley  v.  Lyme  Regis,  5  Bing.  91 ;  s.  c.  1  Bing.  N.  C.  222 ;  Farrant 
V.  Barnes,  11  Com.  B.  n.  s.  553. 

2  See  Story,  Agency,  §§  320,  321 ;  Hayes  v.  Porter,  22  Maine,  371. 

*  Hayes  v.  Porter,  supra.  See,  also,  the  example  of  the  postmaster 
m  the  next  paragraph. 

*  Clothier  v.  Webster,  12  Com.  B.  n.  s.  700;  Mersey  Docks  v. 
Gibbs,  Law  R.  1  H.  L.  93. 

5  Story,   Bailment,   §   463;    Schroyer   v.   Lyncli,  8   Watts,  453; 
Wiggins  !'.  Hathaway,  6  Barb.  632. 
^  See  Wiggins  v.  Hathaway,  supra. 


286         DUTIES  OF  INDIVIDUALS  INTER  SE.    [Ch4p.  XVL 

gence  in  the  discharge  of  a  pubhc  dutj'  where  the  damage 
is  solely  to  the  public.^  The  reason  commonl}-  given  for 
this  is,  that  great  inconvenience  wonld  follow  if  a  person 
violating  a  trust  of  this  kind  conld  be  sued  bj^  each  person 
in  the  community.  A  better  reason,  however,  is,  that  as 
the  right  infringed  belongs  to  the  sovereign,  as  representing 
the  public  at  large,  so  the  correlative  duty  is  one  for  the 
breach  of  which  the  sovereign  alone  can  sue. 

Officers  of  the  courts  are  liable  for  the  injurious  conse- 
quences of  such  official  acts  of  their  own  or  of  their  ser- 
vants as  are  attributable  to  the  want  of  the  care  of  prudent 
men  in  the  same  situation.^  For  example  :  The  defendant 
levies  upon  a  quantit}'  of  coal  on  board  a  vessel.  The  coal 
is  left  on  the  vessel,  with  the  master's  consent,  in  charge 
of  a  keeper  of  the  defendant,  and  while  so  held  the  vessel 
is  sunk  during  a  gale,  with  the  coal  on  board,  to  the  dam- 
age of  the  plaintiff,  for  whom  the  levy  is  made.  The  de- 
fendant is  liable  if  he  has  failed  to  take  such  steps  for  the 
safet}'  of  the  coal  as  a  careful,  prndent  man,  well  acquainted 
with  the  condition  of  the  vessel  and  its  location  with  regard 
to  exposure  to  storms,  might  reasonabl}'  be  expected  to 
take  if  the  coal  belonged  to  himself.^ 

Judges,  however,  while  acting  in  a  judicial  capacity, 
within  their  jurisdiction,  are  not  liable  for  negligence.^ 
And  the  same  is  true  even  of  a  person  acting  in  a  situa- 
tion which  makes  him  virtuall}'  a  private  arbitrator.®   Hav- 

1  1  Black.  Com.  220. 

2  Wharton,  Negligence,  §  28G;  A.sliby  v.  "WHiite,  Ld.  Raym.  938. 

8  Wolfe  V.  Door,  24  Maine,  104 ;  Dunlop  v.  Knapp,  14  Ohio  St. 
64;  Kennard  v.  Willmore,  2  Heisk.  619;  Browning  v.  Hanford,  5  Hill, 
6R8 ;  Moore  v.  Westervelt,  27  N.  Y.  234. 

*  Moore  v.  Westervelt,  supra. 

'  See  Yates  v.  Lansing,  6  Johns.  282;  Pratt  v.  Gardiner,  2  Cush. 
63;  Bradley  v.  Fislier,  13  Wall.  350. 

6  Pappa  V.  Rose,  Law  R.  7  C.  P.  32,  525;  Tharsis  Sulphur  Co.  v. 
Lof tus.  Law  R.  8  C.  P.  1 


§  6.]  NEGLIGENCE.  287 

ing  submitted  a  dispute  to  the  decision  of  an  arbitrator, 
neither  party  can  require  him  to  exercise  the  skill  or  care 
of  an  expert,  unless  he  has  held  himself  out  to  possess  it, 
or  has  agi-eed  to  exercise  it.  For  example  :  The  defend- 
ant, as  broker,  makes  a  contract  for  the  plaintiff,  as  follows  : 
"  Sold  by  order  and  for  account  of  P.,  to  my  principal  S., 
to  arrive,  500  tons  Black  Sm^-rna  raisins  —  18G9  growth  — 
fair  average  quality  in  opinion  of  selhug  broker,  to  be  de- 
livered here  in  London — at  22s.  per  cwt.,"  &c.  This 
contract  makes  the  defendant  virtually  an  arbitrator,  to 
determine  between  the  parties  an}-  difference  arising  be- 
tween them  as  to  the  quality  of  the  raisins  tendered  in  ful- 
filment of  the  contract,  not  stipulating  for  care  or  skill  on 
the  i)art  of  the  defendant ;  and  he  is  not  liable  for  failing 
to  exercise  reasonable  care  and  skill  in  coming  to  a  deci- 
sion, if  he  act  in  good  faith,  to  the  best  of  his  judgment.^ 

Dealings  between  agents  and  their  principals  (including 
attorney  and  client)  and  between  trustees  and  their  cestuis 
que  trust,  and  between  persons  in  lilce  situations,  with  refer- 
ence to  the  interests  confided,  by  which  the  agent  or  trustee 
is  to  acquire  a  right,  or  a  new  right,  therein,  are,  for  the 
welfare  of  the  principal  or  cestui  que  trust,  discouraged  by 
the  law.  Such  transactions  are  prima  facie  voidable  b}'  the 
latter  parties  ;  and  the}'  are  bindiug  onh'  upon  clear  proof 
of  the  utmost  good  faith  on  the  part  of  the  agent  or  trustee, 
and  a  full  disclosure  of  every  thing  necessary  to  enable  the 
principal  or  cestui  que  trust  to  act  with  perfect  understanding 
of  the  nature  and  value  of  his  rights.  If  the  agent  or  trus- 
tee should  fail  to  give  such  information  and  to  make  every 
needed  disclosure,  he  has  violated  his  dut}'  to  his  principal  or 
cestui  que  trust ;  which  fact  will  entitle  the  injured  party  to 
redress,  even  though  the  omission  was  not  intentional.  To 
neglect  to  give  it  is  to  neglect  to  do  that  which  a  prudent, 
diligent,  and  honest  agent  or  trustee  would  do  in  the  same 

1  Pappa  V.  Rose,  supra. 


288         DUTIES  OF  I^T)IVIDUALS  INTER  SE.    [Chap.  XVI. 

situation ;  and  the  redress  ma}'  be  souglit  by  a  rescission 
of  the  transaction,  or  (probably)  by  an  action  for  damages, 
allowing  the  transaction  to  stand. ^ 

The  wrong  may,  however,  be  subsequently  ratified  by 
the  injured  party,  acting  upon  a  full  knowledge  of  the  facts, 
and  uninfluenced  by  the  wrong-doer.^  But  it  appears  to 
be  necessary  to  constitute  a  binding  ratification  that  a  trus- 
tee or  client,  if  not  a  principal,  should  not  only  be  aware 
of  all  the  facts,  and  act  independently,  but  that  he  should 
also  be  apprised  of  the  law  as  to  how  the  facts  would  be 
dealt  with  if  brought  before  the  courts.^ 

§  7.   Of  the  Use  op  Pkemises. 

In  this  section  the  duty  of  the  owner  or  occupant  of 
premises  to  persons  who  have  sustained  damage  thereon, 
by  reason  of  the  condition  of  the  premises,  is  to  be  stated. 
The  question  of  the  existence  and  nature  of  this  duty  turns 
upon  the  consideration  of  the  occasion  which  brought  the 
injured  person  there ;  —  whether  the  plaintiff'  was  a  tres- 
passer, a  bare  licensee,  an  invited  licensee,  a  customer,  or 
a  servant.  The  question  must,  therefore,  be  considered 
with  reference  to  each  of  these  situations. 

The  owner  or  occupant  of  premises  owes  no  duty  to  keep 
Ms  premises  in  repair  for  the  purposes  of  trespassers.  In 
other  words,  it  is  no  breach  of  duty  to  a  trespasser  that  a 
man's  premises  were  in  a  dangerous  state  of  disorder,  what- 
ever the  consequences  to  the  fonner.  But  this  rule  of  law 
must  not  be  understood  as  declaring  that  the  occupant  or 
owner  owes  no  duty  to  trespassers  with  regard  to  the  man- 
agement of  his  premises.     He  has  no  right  even  as  to  such 

1  Upon  the  subject  of  this  paragraph,  see  Chapter  5  of  the  author's 
work  on  Fraud,  and  especially  §§  2,  3,  and  5  of  that  chapter. 

2  Salmon  v.  Cutts,  4  De  G.  &  S.  125. 

8  Cumberland  Coal  Co.  v.  Sherman,  20  Md.  134. 


§  7.]  NEGLIGENCE.  289 

persons  to  bring  dangerous  animals  or  engines  upon  his 
land  unless  he  properly  secure  them.  For  example :  The 
defendant  has  a  vicious  or  savage  dog  upon  his  premises 
which  he  licedlessly  allows  in  the  day-time  to  run  at  large 
unmuzzled,  having  notice  of  his  propensities.  The  plain- 
tiff, having  strayed  upon  the  premises  without  permission, 
while  hunting,  is  attacked  and  bitten  by  the  dog.  The 
defendant  has  violated  his  duty  to  the  plaintiff  in  not  secur- 
ing the  dog,  and  is  liable.^  Again  ;  The  defendant  sets  a 
spring-gun  in  his  grounds  to  catch  persons  entering  thereon 
without  pennission,  and  fails  to  give  notice  of  the  particu- 
lar danger.  The  plaintiff  while  trespassing  on  the  premises 
is  injured  by  the  gun,  having  no  notice  of  danger.  The 
defendant  is  liable." 

If,  however,  the  trespasser  had  actual  or  constnictive 
notice  of  the  presence  of  the  dangerous  thing,**  or  (proba- 
bly) if  he  entered  in  the  night-time  or  in  the  day-time  with 
a  felonious  intent,  he  would  not  be  entitled  to  recover.^ 
In  case  of  an  entry  in  the  night-time,  it  might  not  always 
be  necessary  that  the  party  had  entered  with  a  felonious 
intent.  If  it  were  proper  or  customary  to  keep  a  savage 
dog  as  a  watch,  it  might  be  considered  that  a  person  enter- 
ing by  night  without  permission  acted  with  notice. 

A  bare  licensee  is  one  who  enters  another's  premises 
without  right  or  actual  grant  of  permission,  but  still  under 
circumstances  from  which  he  has  come  to  suppose  a  per- 
mission ;  as  in  the  case  of  one  who  crosses  an  open  field 
on   a  foot-path,   commonly  used   by   the   neighbors,  but 

1  Loomis  V.  Terry,  17  Wend.  496.  If  the  plaintiff  were  not  a 
trespasser,  tlie  defendant  would  clearly  be  liable,  though  not  guilty 
of  negligence  in  the  care  of  the  animal ;  supposing  the  plaintiff  not 
to  have  provoked  it.  May  v.  Burdett,  9  Q.  B.  101 ;  Woolf  v.  Chalker, 
31  Conn.  121 ;  ante,  pp.  248-260. 

2  Bird  V.  Holbrook,  4  Bing.  628. 

8  Ilott  V.  Wilks,  3  Barn.  &  Aid.  308. 
*  See  Loomis  v.  Terry,  supra. 

19 


290         DUTIES  OF  IXDIVIDUALS  INTER  SE.   [Chap.  XVI. 

without  any  right  of  -wslj.  Such  a  person,  though  not  in 
a  position  to  require  the  owner  or  occupant  of  the  land  to 
keep  the  same  in  repair,*  occupies  (probablj-)  a  more 
favorable  position  than  a  trespasser.  He  can,  of  course, 
insist  that  the  occupant  shall  let  loose  no  savage  beast 
upon  him,  and  set  no  traps  in  his  way,  without  giving  him 
fair  notice.  But,  further,  it  should  seem  that,  if  it  were 
usual  for  people  to  pass  over  the  occupant's  premises  in 
the  night-time,  he  could  require  the  occupant  to  exercise 
reasonable  care  with  respect  to  the  keeping  of  vicious 
animals,  of  whose  propensity  to  do  harm  the  occupant  has 
notice. 

Indeed,  b}-  the  law  of  England,  a  bare  licensee  can  in- 
sist upon  the  occupant's  keeping  his  premises  in  a  safe 
condition  in  one  particular.  A  man  has  no  right  to  render 
the  highwa}'  dangerous  or  less  useful  to  the  public  than  it 
ordinaril^^  is  :  if  he  should  do  so,  he  is  liable  as  for  a  nui- 
sance to  any  one  who  has  suffered  damage  thereb}'.^  And 
a  bare  licensee  on  the  wrong-doer's  premises  will  be  enti- 
tled to  recover  for  an}'  damage  sustained  thereby.  For 
example  :  The  defendant  digs  a  pit  adjoining  the  highwaj', 
and  fails  to  fence  it  off  from  the  street.  The  plaintiff, 
while  walking  along  the  street,  in  the  dark,  accidentally 
steps  a  little  aside  in  front  of  the  pit,  and  falls  into  it, 
thereby  sustaining  bodil}'  injury.  The  defendant's  act  in 
leaving  the  place  unguarded  makes  it  a  public  nuisance, 
and  he  is  liable  for  the  injury  received  by  the  plaintiff.^ 

If,  however,  the  pit,  though  near,  were  not  substantially 
adjoining  the  highway,   so  that  the   plaintiff  must  have 

1  Sweeny  v.  Old  Colony  R.  Co.,  10  Allen,  368 ;  s.  c.  Bigelow's  L.  C. 
Torts,  660.  ^  Ante,  p.  237. 

3  Barnes  v.  Ward,  9  Com.  B.  392.  But  see  contra,  Rowland  v. 
Vincent,  10  Met.  371,  in  which,  however,  the  point  appears  to  have 
been  overlooked  that  the  defendant's  act  amounted  to  a  public 
Duisancc. 


§  7.]  NEGLIGENCE.  291 

been  a  trespasser  before  reaching  it,  he  could  not  treat  the 
omission  of  the  defendant  to  fence  as  a  breach  of  duty. 
For  example :  The  defendants,  being  possessed  of  land 
near  to  an  ancient  common  and  public  footway,  construct 
a  reservoir  for  receiving  the  back-wash  of  water  at  the 
lock  of  a  canal  owned  b}-  them.  The  plaintiff's  intestate 
sets  but  b}'  night  along  this  footpath  for  Sheffield.  The 
path  runs  alongside  of  the  canal  for  about  three  hundred 
3-ards  to  a  point  at  which  it  is  bounded  on  one  side  by  a 
lock,  and  on  the  other  bj'  the  reservoir.  At  this  point,  the 
pathway  turns  to  the  right  over  a  bridge,  crossing  the  b}'- 
wash.  A  person  continuing  straight  on  in  the  direction 
of  the  pathway,  and  not  turning  to  the  right  to  go  over 
the  bridge  would  find  himself  (if  not  prevented  b}'  the  ann 
of  a  lock)  upon  a  gi'ass}-  plat  about  fi^•e  yards  long  by 
seven  broad,  between  the  lock  and  the  by-wash,  level 
with,  but  somewhat  distant  from,  the  footpath  ;  the  plat 
being  unfenced,  and  having  a  fall  of  about  three  yards  to 
the  water.  On  the  morning  following  the  setting  out  of 
the  deceased,  he  is  found  drowned  at  this  point.  The 
defendants  are  not  guilty  of  a  breach  of  duty  in  not  fenc- 
ing the  place,  since  it  is  not  substantially  adjoining  the 
highway,  and  the  deceased  must  have  become  a  trespasser 
before  reaching  the  resers'oir.^ 

The  same  will  be  true  of  injury  sustained  b}'  strapng 
cattle  or  horses.'^  For  example  :  The  defendant  digs  a  pit 
in  his  waste  land  within  thirty-six  feet  of  the  highway,  and 
the  plaintiff's  horse  escapes  Into  the  waste  and  falls  into 
the  pit  and  is  killed.  The  defendant  has  violated  no  duty 
to  the  plaintiff.* 

1  Hardcastle  v.  South  Yorkshire  Ry.  Co.,  4  Hurl  &  N.  67 ;  Dinks 
V.  South  Yorkshire  Ry.  Co.,  3  Best  &  S.  244 ;  HounscU  v.  Smyth,  7 
Com.  B.  N.  s.  7ol. 

2  Blyth  V.  Topham,  Croke  Jac.  158;  Knight  v.  Abert,  6  Barr,  472 
'  Blyth  V.  Topham,  su/ira. 


292         DUTIES  OF  ES'DmDUALS  ES'TER   SE.   [Chap.  XYI 

And  this  appears  to  be  true  in  the  case  of  straying  ani- 
mals, not  only  where  the  owner  is  not  liable  for  their  act  of 
feeding  on  the  defendanf  s  premises,  but,  also,  where  he  is 
liable,  if  the  pit  was  not  adjoining  the  highway.  For  ex- 
ample :  The  defendant  is  owner  of  unfeneed  woodland,  in 
which  it  is  not  unlawful  for  the  plaintiflTs  cattle  to  feed. 
One  of  the  cattle  falls  into  an  tmfenced  pit  in  the  wood, 
and  is  injured.     The  defendant  is  not  Uable.^ 

If  the  Hcensee  were  invited,  either  expressly  or  by  active 
conduct,  by  the  occupant,  the  situation  becomes  entirely 
changed.  In  such  a  case,  the  occupant  owes  a  duty  to 
the  invited  licensee,,  not  merely  to  restrain  his  ferocious 
animals,  and  to  prevent  injury  from  dangerous  concealed 
engines,  and  to  guard  against  nuisances  adjoining  the 
highway,  but  also  to  keep  his  premises  in  reasonable 
repair,  and  to  refrain  from  negligence  generally ;  other- 
wise, he  will  be  liable  for  any  injury  sustained  by  the 
licensee,  not  caused  by  the  litter's  own  act.  In  other 
words,  the  owner  or  occupant*  is  bound  to  exercise  rea- 
sonable care  to  prevent  damage  from  unusual  danger,  of 
which  he  has,  or  ought  to  have,  knowledge.  For  exam- 
ple :  The  defendants,  a  railroad  corporation,  have  a  pri- 
vate crossing  on  their  land  over  their  railroad,  at  grade, 
in  a  city,  which  crossing  they  have  constructed  for  the  ac- 
commodation of  the  pubhc ;  and  they  keep  a  flagman  sta- 
tioned there  to  prevent  persons  from  crossing  when  there  is 
danger.     The  plaintiff  coming  down  the  way  to  the  cross- 

1  Knight  V.  Abert,  supra.  The  defendant  would  have  been  liable 
if  the  plaintiff  had  hired  the  pastore  of  his  cattle  in  the  wood. 

'  A  lessor  of  premises  is  liable  for  their  condition  if  their  tinsafe 
condition  was  doe  to  bis  negligence ;  if  dae  to  the  negligence  of  tlie 
tenant,  the  latter  is  liable,  unless  the  lessor  has  expressly  assumed 
the  duty  to  keep  in  repair,  or  unless  he  is  in  possession  with  hia 
tenant.  See  Fisher  r.  Thirkell,  21  Mich.  1;  s.  c.  Bigelow's  L  C. 
Torts,  627 ;  Elliott  f.  Pray,  10  Allen,  .378. 


§  7.]  NEGLIGENCE.  293 

iug  willi  horse  and  wagon  is  signalled  b}'  the  flagman  to 
cross,  and  on  proceeding,  according  to  the  signal,  to  cross 
the  track,  is  run  against  hj  one  of  the  defendants'  engines  ; 
the  flagman  having  been  guilt}'  of  carelessness  in  gi^'ing  the 
signal.  This  is  a  breach  of  dut}-,  and  the  defendants  are 
liable  for  the  damage  sustained.^  Again  :  The  defendant, 
owner  of  land,  having  a  private  road  for  the  use  of  persons 
coming  to  his  house,  gives  permission  to  a  builder  engaged 
in  erecting  a  house  on  the  land,  to  place  materials  on  the 
road.  The  plaintiff,  having  occasion  to  use  the  road  in 
the  night,  for  the  purpose  of  going  to  the  defendant's  resi- 
dence, runs  against  the  materials  and  sustains  damage, 
without  fault  of  his  own.  The  defendant  is  hable  ;  having 
held  out  an  inducement  to  the  plaintifl"  togo  to  the  place 
in  question. - 

The  gist  of  the  liability  in  such  cases  consists  in  the 
fact  that  the  person  injured  did  not  act  merely'  for  his  own 
convenience  and  pleasure,  and  from  motives  to  which  no 
act  or  sign  of  the  owner  or  occupant  contributed,  but  that 
he  entered  the  premises  because  he  was  led  to  believe 
that  the}-  were  intended  to  be  used  b}-  visitors  or  passen- 
gers, and  that  such  use  was  not  onh'  acquiesced  in  b}'  the 
owner  or  person  in  possession  and  control  of  the  premises, 
but  that  it  was  in  accordance  with  the  intention  and  design 
with  which  the  way  or  place  was  adapted  and  prepared,  or 
allowed  to  be  so  used.^  The  real  distinction,  therefore,  is 
this :  A  mere  passive  acquiescence  by  an  owner  or  occu- 
pier in  a  certain  use  of  his  land  by  others,  involves  no  lia- 
bility for  negligence  ;  but,  if  he,  directly  or  by  implication, 
induce  persons  to  enter  upon  his  premises,  he  therebj' 
assumes  an  obligation  to  keep  them  in  a  safe  condition, 

1  Sweeny  v.  Old  Colony  R.  Co.,  10  Allen,  368;  s.  c.  Bigelow's  L.  C. 
Torts,  6(30. 

2  Corby  v.  Plill,  4  Com.  B.  n.  s.  556. 

8  Sweeny  v.  Old  Colony  R.  Co.,  supra,  Bigclow,  C.  J. 


294         DUTIES  OF  INDIVIDUALS  INTER  SE.   [Chap.  XVI. 

suitable  for  such  use,  and  for  a  breach  of  this  obhgation 
he  is  Uable  in  damages  to  a  person  injured  thereby.^ 

It  Avas  urged  in  the  authorit}'  in  which  this  doctrine  was 
laid  down  (a  point  worthy  of  notice  here)  that,  if  the 
defendants  were  liable  in  such  a  case,  they  would  be  made 
to  suffer  b}'  reason  of  the  fact  that  the}'  had  taken  precau- 
tions to  guard  against  accident  at  a  place  which  thej'  were 
not  bound  to  keep  open  for  use  at  all,  and  that  the  case 
would  thus  present  the  (supposed)  singular  aspect  of  a 
party  liable  for  neglect  in  ^  the  performance  of  a  duty 
voluntarily  assumed,  and  not  imposed  by  law.  The  an- 
swer was,  that  this  was  no  anomal}'.  If  a  person,  it  was 
observed,  undertake  to  do  an  act,  or  to  discharge  a  duty, 
by  which  the  conduct  of  others  may  properl}'  be  regulated, 
he  is  bound  to  perform  it  in  such  a  manner  that  those  who 
are  rightfull}'  led  to  a  course  of  conduct  or  action  on  the 
faith  that  the  act  or  duty  will  be  properly  performed  shall 
not  suffer  loss  or  injury  b}'  reason  of  his  negligence.  The 
liabilit}'  in  such  cases  does  not  depend  upon  the  motives 
or  considerations  which  induced  a  party  to  take  on  himself 
a  particular  duty,  but  on  the  question  whether  the  legal 
rights  of  others  have  been  violated  by  the  mode  in  which 
the  charge  assumed  has  been  performed.-^ 

In  case  the  injury  arise  by  reason  of  a  defective  condi- 
tion of  the  occupant's  premises,  it  is  necessary  to  the  ha- 
bility  of  the  part}'  to  a  licensee  that  he  had  notice  of  the 
defect  before  the  damage  was  sustained.'  For  example : 
The  defendant  is  proprietor  of  a  hotel,  containing  in  one 
of  the  passage-wa3's  a  glass  door,  the  glass  in  which  has 
gradually  liecome  loosened  and  insecure  ;  but  the  defendant 
is  not  aware  of  the  fact,  nor  is  he  in  fault  for  not  know- 

1  lb.     See.  also,  Balch  v.  Smith,  7  Hurl.  &  N.  741. 

2  Sweeny  v.  Old  Colony  R.  Co.,  Blgelow,  C.  J. 

3  Welfare  v.  London  &  B.  Ry.  Co.,  Law  R.  4  Q.  B.  693  j  Southcote 
r.  Stanley,  1  Hurl.  &  N.  247. 


§  7]  NEGLIGENCE.  295 

ing  it.  The  glass  falls  out  as  the  plaintiff  opens  the  door, 
and  the  plaintiff,  a  visitor  merely,  is  injured.  The  defend- 
ant is  not  Uable.^ 

The  case  of  a  person  entering  upon  the  premises  of  an- 
other as  a  customer,  on  purposes  of  business,  is  (probably) 
still  stronger  against  the  occupant.  It  should  seem  that  a 
greater  degree  of  care  ought  to  be  taken  to  protect  such  a 
person  than  one  to  whom  (it  may  be)  a  mere  tacit  induce- 
ment was  held  out  to  enter,  since  it  may  be  the  duty  of  the 
customer  to  enter,  and  not  merel}'  his  convenience.  A 
master  may  require  his  servant  to  go  to  a  neighboring  shop 
for  provisions  ;  and  an  officer  may  be  required  to  enter  upon 
premises  to  make  a  levy.  Authorities,  however,  are  want- 
ing in  which  any  occasion  for  this  distinction  has  been 
presented. 

It  is  clear  that  customers  stand  upon  a  more  favorable 
plane  than  bare  licensees,  and  that  the  owner  or  occupant 
of  the  premises  owes  a  duty  to  them  to  keep  the  premises 
in  such  repair  or  condition  as  to  enable  them  to  go  thereon 
for  the  transaction  of  their  business  in  the  usual  manner  of 
customers  ;  and  that,  if  injury  happen  by  reason  of  the  im- 
proper state  of  the  premises,  of  which  fact  the  occupant 
has  notice,  he  will  be  liable.  Or,  as  the  rule  has  been  stated 
by  judicial  authorit}^  the  owner  or  occupant  of  premises  is 
liable  in  damages  to  those  Avho  come  to  it,  using  due  care, 
at  his  invitation  or  inducement,  express  or  implied,  on  any 
business  to  be  transacted  with  or  permitted  by  him  for  an 
injury  occasioned  by  the  unsafe  condition  of  the  premises 
or  of  the  access  thereto,  which  is  known  by  him  and  not  by 
them,  and  which  he  has  negligently  suilcred  to  exist,  and 
has  given  them  no  notice  of.-  For  example  :  The  defend- 
ant, proprietor  of  a  brewery,  leaves  a  trap-door  in  a  pas- 

1  Southcote  V.  Stanley,  supra.  Had  the  plaintiff  been  a  guest,  the 
defendant  would  (probablj^  have  been  Hable. 

2  Carleton  v.  Franconia  Iron  Co.,  99  Mass.  21G,  Gray,  J. 


296         DUTIES  OF  INDIVIDUALS  INTER  SE.   [Chap.  XVI. 

sage-way  within  his  premises,  leading  to  his  office,  open 
and  unguarded  bj'  night,  and  the  plaintiff's  wife,  in  going 
through  the  passage-way  by  night  for  purposes  of  busi- 
ness with  the  proprietor,  falls,  without  fault  of  her  own, 
down  the  hole  and  is  killed.  The  defendant  is  liable.^ 
Again  :  The  defendant's  clerk,  in  the  course  of  his  busi- 
ness, takes  the  plaintiff  into  a  dark  part  of  their  store,  and 
while  there  she  falls  through  a  trap-door,  left  open  and 
unguarded,  and  is  injured.  The  defendants  are  guilty-  of 
negligence,  and  liable  for  the  damage  sustained.^ 

In  accordance  with  the  principle  stated,  the  proprietors 
of  a  wharf,  estabhshed  for  the  use  of  the  public,  are  liable 
for  injur}'  sustained  by  a  vessel  by  reason  of  the  dangerous 
condition  of  the  place  of  landing,  known  to  the  proprietors 
of  the  wharf  and  carelessly  allowed  to  remain,  and  not 
known  to  the  plaintiff".  For  example  :  The  defendants, 
owners  of  a  wharf  at  tide-water,  procure  the  plaintiff  to 
bring  his  vessel  to  it  to  be  there  discharged  of  its  cargo, 
and  suffer  the  vessel  to  be  placed  there,  at  high  tide,  over 
a  rock  sunk  and  concealed  in  the  adjoining  dock.  The  de- 
fendants are  aware  of  the  position  of  the  rock  and  of  its 
danger  to  vessels  ;  but  no  notice  of  its  existence  is  given, 
and  the  plaintiff  is  ignorant  of  the  fact.  With  the  ebb  of 
the  tide,  the  vessel  settles  down  upon  the  rock  and  sustains 
injur}'.  The  defendants  are  guilty  of  a  breach  of  duty,  and 
are  liable  for  the  damage.^ 

The  question  of  the  occupant's  liabilit}'  in  cases  like  this, 
will  be  affected  by  the  consideration  whether  the  injured 
l)arty  was  fairly  authorized  under  the  circumstances  to  go 
upon  the  particular  part  of  the  premises  at  which  the  acci- 
dent happened.  If  the  place  was  one  which  customers  are 
wont  to  frequent  without  objection,  it  will  be  assumed  that 

1  Chapman  v.  Rothwell,  El.  B.  &  E.  168. 

2  l."reer  v.  Cameron,  4  Rich.  228. 

8  Carleton  v.  Franconia  Iron  Co.,  supra. 


§  7.]  NEGLIGENCE.  297 

the  part}'  is  authorized  to  go  there.  For  example :  The 
defendants,  owners  of  a  store,  situated  upon  a  public 
street,  let  the  upper  stories  thereof  to  another ;  and  an 
entrance  directly  in  front  of  the  stairs  which  lead  above  is 
so  constructed  and  kept  constantl}'  open  that  it  is  used  for 
passage  for  persons  going  upstaii-s.  There  is  a  trap-door 
between  the  entrance  and  the  stairs ;  and  the  plaintiff 
entering  the  place  on  business,  and  in  the  exercise  of  due 
care,  falls  through  the  trap,  the  same  being  open,  and  is 
injured.  The  defendant  is  guilt}'  of  a  breach  of  duty  in 
leaving  the  trap-door  open,  and  is  liable  to  the  plaintiff.^ 

If,  however,  a  customer  is  injured  by  reason  of  the  bad 
condition  of  a  portion  of  the  premises  not  open  to  the  pub- 
lic, and  no  invitation  or  inducement  has  been  held  out  to 
him  b}'  the  owner  or  occupant  to  go  there,  he  cannot  re- 
cover for  injury  sustained  there,  though  the  place  be  fre- 
quented b}'  the  servants  of  the  occupant.  For  example : 
The  defendants  are  owners  of  a  foundr}',  on  the  front  door 
of  the  outer  part  of  which  is  placed  the  sign  "  No  admit- 
tance." The  plaintiff  enters  the  outer  building  to  inquire 
after  certain  castings  of  his,  and  the  defendant  tells  Inra 
that  the}'  are  nearly  ready,  and  sends  a  workman  into  the 
foundry  part  of  the  building  to  see  about  them.  The  plain- 
tiff follows  the  workman,  though  not  invited,  and  though 
none  but  persons  employed  there  go  into  the  foundry, 
falls  into  a  scuttle,  and  is  injured.  The  defendant  is  not 
nable.2 

This  duty  to  customers,  however,  requires  the  occupant 
to  use  due  care  over  all  parts  of  his  premises  and  their 
appurtenances  to  which  the  customer  has  need  of  access  in 
the  performance  of  the  business.  For  example  :  The  de- 
fendants, owners  of  a  dock,  provide  a  gangway  for  passage 
from  the  plaintiff's  vessel ;  the  gangway  being  in  an  inse- 

1  Elliott  V.  Pray,  10  Allen,  378. 

2  Zoebisch  v.  Tarbell,  10  Allen,  385. 


298         DUTIES  OF  INDIVIDUALS  INTER  SE.    [Chap.  XVL 

cure  position,  to  the  knowledge  of  the  defendants,  but  not 
to  the  knowledge  of  the  plaiutiif.  The  plaiutitf  is  injui-ed 
while  properly  passing  over  the  same.  The  defendants  are 
liable.^ 

The  occupant  may  also  be  liable,  though  the  business  was 
not  transacted  by  the  plaintiif  in  the  usual  way  or  place, 
provided  he  could  not  so  do  it  convenientl}-,  and  was  not 
prohibited  from  doing  it  as  he  did ;  the  defendant  or  his 
servant  seeing  him  at  the  time.  The  plaintiif  is  not  deemed 
a  bare  licensee  in  such  a  case.^ 

"Where  the  injury  has  been  sustained,  not  by  reason  of 
an}'  improper  condition  of  the  defendant's  premises,  but  by 
a  fall  down  an  ordinary  stairway,  or  the  like,  the  defendant 
is  not  guilty  of  negligence  in  leaving  a  door  open  or  in 
failing  to  give  notice  of  the  place  where  danger  may 
happen.^ 

As  to  this  class  of  cases,  it  is  to  be  observed  that,  if 
there  be  no  actual  invitation  to  the  injured  person  to  go 
upon  the  premises  in  question,  in  order  to  recover  damages 
for  injury  sustained,  he  must  have  gone  upon  the  premises 
for  business  with  the  occupier.*  But  this  is  not  enough. 
A  man  has  no  right  to  intrude  himself  upon  another,  even 
for  purposes  of  business.  The  business  which  will  justify 
an  entry  upon  the  premises,  and  entitle  the  party  to  dam- 
age for  injury  sustained,  must,  in  the  absence  of  an  express 
invitation,  or  an  engagement  for  services,  be  the  business 
of  the  occupant.^  or  business  which  he  is  bound  to  attend  to. 
The  ground  of  liability  is  that  an  invitation  is  implied  ;  and 
an  invitation  can  be  implied  only  when  the  entry  is  made 

1  Smith  V.  London  Docks  Co.,  Law  R.  3  C.  P.  326. 

2  Holmes  v.  Northeastern  Ry.  Co.,  Law  R.  4  Ex.  254 ;  8.  c.  Law 
R.  6  Ex.  123 

8  Wilkinson  v.  Fairric,  1  Hurl.  &  C.  633. 

*  CoUis  V.  Selden,  Law  R.  3  C.  P.  495 ;  Carleton  v.  Franconia  Iron 
Co.,  supra;  Tebbutt  v.  Bristol  &  E.  Ry.  Co.,  Law  R.  6  Q.  B.  73,  75. 


§  7.]  NEGLIGKNCE.  299 

in  connection  witli  business  of  the  occupant.  A  retail 
dealer  is  bound  to  use  due  diligence  to  keep  his  premises 
in  fit  condition  for  persons  who  go  to  him  to  buy,  but  not 
(probably)  for  peddlers  who  go  to  sell ;  unless  indeed  they 
are  persons  with  whom  he  is  accustomed  to  deal  and  whom 
he  expects  to  come  into  his  store.  So  likewise,  under  the 
same  circumstances,  he  would  (probably)  be  liable  foi 
injur}'  to  a  creditor,  or  his  servant,  who  went  into  his 
store  to  demand  payment  of  a  debt  due,  but  not  to  a 
person  who  went  there  to  procure  a  subscription. 

It  remains  to  consider  the  nature  of  the  duty  which  a 
master  owes  to  his  servants  with  regard  to  the  condition 
of  his  premises,  his  machinery,  tackle,  and  the  like.  It  is 
settled  law  that  the  master  is  liable  for  injury  sustained  by 
reason  of  his  negligence  ;  and  this  is  doubtless  to  be  under- 
stood as  the  failure  to  exercise  such  care  of  his  premises  or 
machinery  as  a  prudent  or  careful  master  would  exercise. 

If  the  apparatus  to  be  made  use  of  by  the  servant  be 
unsafe  to  the  knowledge  of  the  master,  and  not  to  the 
knowledge  of  the  servant,  and  the  servant  be  liable  to  sus- 
tain damage  thereby,  a  prudent  master  would  give  notice 
of  the  fact  or  procure  proper  apparatus  ;  and  one  who 
should  fail  to  do  either  would  be  liable  for  any  damage 
sustained  thereby  by  the  servant  without  the  latter's  fault. 
For  example :  The  defendants  employ  the  plaintiff  to  lay 
bricks  for  them,  which  must  be  carried  up  over  a  scaffold, 
erected  by  the  defendants.  The  materials  of  the  scaffold 
are  in  bad  condition  to  the  knowledge  of  the  defendants  ; 
but  the}'  direct  the  use  of  them,  as  being  good  enough. 
By  reason  of  the  bad  condition  of  the  materials,  the  scaf- 
fold falls,  and  the  plaintiff  is  injured.  The  defendants  are 
Hable.i 

The  nature  and  extent  of  this  duty  of  the  master  have, 

1  Eoberts  v.  Smith,  2  Hurl.  &  N.  213 ;  s.  c.  Bigelow's  L.  C.  Torts, 
684. 


300         DUTIES  OF  INDIVIDUALS  INTER  SE.   [Chap.  XVI. 

however,  been  the  subject  of  some  couflict  and  doubt.  It 
has  sometimes  been  supposed  that  the  duty  grows  out  of 
the  contract  of  service  ;  ^  but  the  contrary  has  with  better 
appearance  of  soundness  been  maintained.^  In  other  cases, 
and  ver}'  commonl}',  it  is  said  that  the  servant  undertalces 
the  ordinar^^  risks  incident  to  the  business,  and  that  the 
master  therefore  is  not  hable  for  damage  sustained  b}^  the 
servant  by  reason  of  accidents  arising  from  such  risks  ; 
supposing  the  master  not  to  have  been  personally  guilty 
of  negligence.^  This  may  be  considered  the  usual  wa^'  of 
stating  the  nature  of  the  master's  duty.  It  has,  however, 
been  strongly  argued  that  this  does  not  trul}'  state  his 
dut}' ;  and  that,  apart  from  the  dicta  of  some  of  the  judges, 
there  is  no  authorit}'  for  drawing  a  distinction  between  the 
dut}'  which  a  master  owes  to  his  servant,  with  regard  to 
the  care  of  premises  or  machinery,  and  that  which  he  owes 
to  other  persons  who  have  gone  upon  his  premises  by 
invitation  or  for  business.* 

In  accordance  with  this  latter  view,  it  is  said  that  it  is 
the  duty  of  all  who  occupy'  land  to  which  others  have  the 
right  to  resort  upon  business  with  the  occupier  to  take  care 
that  those  resorting  there  are  not  exposed  to  hidden  dan- 
gers. Such  persons  have  the  right  to  expect  that  the  occu- 
pier will  use  reasonable  care  to  guard  them  from  dangers  of 
the  existence  of  which  he  is  or  ought  to  be  aware,  and  of  the 
existence  of  which  the}'  are  ignorant ;  provided  he  has  no 
good  reason  to  presume  that  the}'  have  equal  knowledge 
upon  the  subject  with  himself.  And  the  decided  cases  are 
considered  to  full}'  support  the  assertion  that  the  position 

^  See  Albro  v.  Jaquitli,  4  Gray,  99;  Coombs  v.  New  Bedford  Cord- 
age Co.,  102  Mass.  572. 

2  Kilcy  V.  Baxcndale,  3  Hurl.  &  N.  445,  Martin,  B. 

'  Priestley  v.  Fowler,  3  Mees.  &  W.  1 ;  Farwell  v.  Boston  &  W.  R. 
Co.,  4  Met.  49. 

*  Story,  Agency,  §  453  d,  note.  Green's  ed. 


§  7.]  NEGLIGENCE.  301 

of  the  master  towards  his  servant,  in  respect  of  his  real 
estate,  his  machiner}-,  or  apparatus,  is  the  same  as  his 
position  in  those  respects  towards  all  other  persons  with 
whom  lie  has  business  relations.  A  servant  ma}'  be  as  well 
acquainted  as  his  master  is  with  the  danger  of  premises  or 
the  defects  of  machiner}-.  If  he  is,  he  cannot  recover, 
nnless  assured  by  the  master  that  ever\'  thing  not  directlj' 
before  his  own  ej'es  is  safe.  But  the  same  may  be  true  of 
customers.^ 

This  view  is  intended  merety  to  point  out  the  (supposed) 
fact  that,  in  case  of  personal  negligence  in  the  occupant  of 
premises,  it  matters  not  whether  the  person  who  has  sus- 
tained the  injury  be  a  customer  or  a  servant,  and  if  a  ser- 
vant, that  the  injury  was  directly  sustained  by  reason  of 
the  negligence  of  a  fellow-servant.  In  other  words,  the 
mere  fact  that  the  plaintiff  is  a  servant  is  considered  as 
imposing  no  less  degree  of  personal  care  than  if  he  were  a 
customer. 

Whatever  be  the  true  doctrine  concerning  the  relative 
positions  of  customers  and  servants,  it  is  as  to  servants  a 
well-established  rule  of  law  that  the  master's  dut}'  requires 
him  to  take  all  reasonable  precautions  for  the  safety  of  his 
servants,  and  that  when  he  knows  or  ought  to  know  that 
his  premises,  his  machinery,  or  his  apparatus  are  unsafe, 
the  servant  being  ignorant  of  the  fact,  and  the  master  hav- 
ing no  sufficient  cause  to  presume  his  knowledge,  he  (the 
master)  is  liable  for  damage  thereby  sustained.- 

In  the  absence  of  personal  neghgence  on  the  part  of  the 
master,  his  duty  is  not  bounded  with  reference  to  injuries 

1  Story,  Agency,  supra. 

2  lb. ;  Patterson  v.  Wallace,  1  Macq.  748 ;  Williams  v.  Clouch,  3 
Hurl.  &  N.  258 ;  Mellors  v.  Shaw,  1  Best  &  S.  4.37 ;  Bartonshill  Coal 
Co.  V.  Reid,  3  Macq.  26G;  Watling  v.  Oastcr,  Law  R.  6  E.x.  73; 
Coombs  V.  New  Bedford  Cordage  Co.,  102  Mass.  572,  586 ;  Walsh  v. 
Peet  Valve  Co.,  110  Mass.  23;  Snow  v.  Housatonic  R.  Co.,  8  Allen, 
441. 


802         DUTIES  OF  INDIVIDUALS  INTER  SE.    [Chap.  XVL 

sustained  by  a  servant  tlirongli  the  negligence  of  a  fellow- 
servant,  either  by  the  law  of  England  or  of  America,  by 
his  dutj'  to  customers.  It  is  fundamental  law  that  a  man 
is  liable  to  customers  for  damage  sustained  b}'  reason  of 
the  negligence  of  his  servants  in  the  course  of  their  busi- 
ness ;  but,  in  the  absence  of  personal  negligence  on  the 
part  of  the  master,  he  is  not  liable  for  injuries  sustained 
by  a  servant  b}'  reason  of  the  negligence  of  a  fellow-ser- 
vant.^ For  example :  The  switch-tender  of  the  defend- 
ants, a  railroad  company,  negligently  leaves  his  switch 
open,  whereby  the  plaintiff,  an  engineer  of  one  of  the 
defendant's  locomotives,  is  caused,  without  fault  of  his 
own,  to  run  his  engine  off  the  track,  from  which  he  suffers 
bodily  injury.  The  defendants  are  not  liable,  the  evidence 
showing  that  they  are  not  guilty  of  personal  negligence  ; 
the  switchman  being  shown  to  have  been  theretofore  a 
careful  and  trustworthy  servant.^ 

This  doctrine  is  commonly  supported  on  the  gi'ound 
above  mentioned  with  reference  to  cases  of  master  and 
servant;  to  wit,  that  he  who  engages  in  the  employ- 
ment of  another  for  the  performance  of  specified  duties 
and  services  for  compensation  takes  upon  himself  the 
natural  and  ordinary  risks  and  perils  incident  to  the  per- 
formance of  such  services.  And  the  neghgence  of  fellow- 
servants  is  deemed  one  of  these  ordinary  risks.' 

1  Farwell  v.  Boston  &  W.  K.  Co.,  4  Met.  49;  s.  c.  Bigelow's  L.  C. 
Torts,  688 ;  Ford  v.  Fitchburg  R.  Co.,  110  Mass.  240;  Beaulieu  v.  Port- 
land, 48  Maine,  201 ;  Weger  v.  Pcnn.  R.  Co.,  55  Pcnn.  St.  460 ;  Davis 
V.  Detroit  &  M.  R.  Co.,  20  Mich.  105;  Bartonshill  Coal  Co.  v.  Reid,  3 
Macq.  266;  Bartonshill  Coal  Co.  v.  McGuire,  lb.  300;  Morgan  v.  Vale 
of  Neath  Ry.  Co.,  Law  R.  1  Q.  B.  149. 

-  Farwell  v.  Boston  &  W.  R.  Co.,  supra.  It  is  held  that,  in  the 
absence  of  evidence  tending  to  show  notice  of  the  fellow-servant's 
incompetency,  the  plaintiff  cannot  recover.  Davis  v.  Detroit  &  M. 
R.  Co.,  20  Mich.  105. 

8  lb. ;  Oilman  v.  Eastern  R.  Co.,  10  Allen,  233 ;  Priestley  v.  Fow- 
ler, 3  Mees.  &  W.  1. 


§  7.]  NEGLIGENCE.  303 

It  is  well  settled,  however,  that  if  the  master  was  guilty 
of  personal  negligence  he  will  be  liable,  notwithstanding 
the  fact  that  the  injury  would  not  have  been  sustained  but 
for  the  negligence  of  the  fellow-servant.  And  the  master 
is  deemed  guilty  of  such  personal  negligence  if  he  has 
emploj'ed  the  fellow- servant  with  notice  that  he  is  an  unfit 
person  for  the  business  to  which  he  has  been  assigned,  or, 
if  the  servant  has  been  retained  after  notice  to  the  master 
of  his  unfitness,^  or  if  the  master  has  notice  that  the  prem- 
ises, or  machinery,  or  apparatus  are  defective  ;  ^  the  injured 
servant  having  no  notice  of  the  facts  in  either  case.''  For 
example  :  The  defendants,  a  railroad  company,  are  charged 
with  employing  one  H.  as  their  engine  driver,  to  run  a 
"pom*  engine"  about  their  depot  at  D.,  knowing  him  to 
be  reckless  and  incompetent  for  such  business,  or  having 
subsequentl}'  to  his  employment  become  aware  that  he  is 
reckless  and  incompetent,  and  retaining  him  after  such 
knowledge;  and  the  plaintiff,  a  fellow-servant  with  H., 
without  the  former's  fault,  is  injured  by  his  reckless  and 
negligent  management  of  the  engine.  If  these  allegations 
are  proved,  the  defendants  are  guilty  of  a  breach  of  duty 
to  the  plaintiff,  and  are  liable  for  the  injury  sustained  by 
him.*  Again :  The  defendants,  a  railroad  company,  em- 
ploy and  keep  in  their  sei^dce  a  switchman,  alleged  by  the 
plaintiff,  a  fellow-servant,  to  be  an  habitual  drunkard,  to 
the  knowledge  of  the  defendants,  and  the  plaintiff,  without 

1  Davis  V.  Detroit  &  M.  R.  Co.,  20  Mich.  106 ;  Harper  v.  Indian- 
apolis, &c.,  R.  Co.,  47  Mo.  567 ;  Chapman  v.  Erie  R.  Co.,  55  N.  Y. 
629.     See  Toledo,  &c.,  R.  Co.  v.  Conray,  61  111.  102. 

2  Le  Clair  v.  St.  Paul  &  P.  R.  Co.,  20  Mmn.  9 ;  Lawler  v.  Androsc 
R.  Co.,  62  Maine,  463. 

8  Davis  V.  Detroit  &  M.  R.  Co.,  supra. 

4  Davis  V.  Detroit  &  M.  R.  Co.,  supra.  But  tho  facts  were  deemed 
not  to  support  the  allegations.  As  to  what  constitutes  notice  of 
incompetency,  see  the  same  case;  also,  Oilman  v.  Eastern  R.  Co.,  10 
Allen,  233. 


S04         DUTIES   OF  rST)I\'IDrALS  EN'TEE   SE.    [Chap.  X\'L 

fault  of  his  own,  is  injured  by  the  act  of  such  switchman 
carelessly  leaving  his  switch  half  open.  K  the  allegation 
is  true,  the  defendants  are  liable ;  and  the  allegation  is 
true  if  the  ease  were  such  that  the  defendants  ought  to 
have  known  of  the  character  of  the  switchman,  though 
they  did  not  know  it.* 

Within  this  exemption  of  the  master  from  Uability  for 
the  consequences  to  one  servant  of  negligence  by  an- 
other servant,  the  generally  received  rule  appears  to  \ie 
that  the  term  •  •  feUow-servant  "  includes  aU  who  serve  the 
same  master,  work  under  the  same  c-ontrol.  derive  author- 
ity and  compensation  fix)m  the  same  source,  and  are 
engaged  in  the  same  general  business,  though  it  may  be  in 
diflferent  grades  or  departments  of  it ;  ^  though  by  some  of 
the  courts  it  is  considered  that  the  parties  are  not  fellow- 
servants  if  the  person  through  whose  negligence  the  injurv 
was  sustained  is  superior  in  authority  to  the  person 
injured.' 

In  accordance  with  the  more  general  doctrine,  and  with 
some  of  the  examples  already  given,  an  engineer  and  a 
switchman  are  fellow-servants ;  *  so,  of  brakemen  on  dif- 
ferent trains  of  the  same  railroad  ; '  so  of  a  workman  in  a 
factorj-  and  the  foreman  or  superintendent ;  ^  and  so  of  a 
carpenter  employed  by  a  railroad  to  repair  fences,  and  an 
engineer  of  the  same  company." 

I  Gflman  r.  Eastern  B.  Co.,  supra. 

*  Story,  Agency,  §  453  d,  note  (Green's  ed.). 

*  Pittsbnrgb,  &c.,  E.  Co.  r.  Derinney,  17  Ohio  St  19T,  210. 

*  Farwell  r.  Boston  &  W.  R.  Co.,  4  ilet.  49. 

*  Hayes  r.  Western  R.  Co.,  3  Cash.  270. 

*  Peltham  v.  England,  Law  R.  2  Q.  B.  .33;  Albro  r.  Agawam 
Canal  Co.,  6  Cash.  7-5.  Ste  Lawler  r.  Androsc.  R.  Co.,  62  ilaine, 
463. 

T  Seaver  r.  Boston  &  M.  R.  Co.,  14  Gray,  460.  See  Gilman  r. 
Eastern  R.  Co.,  10  Allen,  233;  Gillahannon  r.  Stony  Brook  R.  Co.,  10 
Cosh.  228. 


§  8-1  >"EC-LIGEXCE.  805 

If  the  person  through  whose  direct  negligence  the  injury 
was  sustained  by  the  seni"ant  was  not  a  feliow-senrant, 
various  considerations  will  enter  into  the  question  of  the 
master's  liability ;  supposing  the  accident  to  have  happened 
upon  the  latter^s  premises.  But  the  master  will  not  be 
liable  to  a  servant  in  any  case  unless  (1)  he  was  personally 
guilty  of  negligence  or  misconduct  resulting  in  the  damage, 
or  unless  ( 2)  the  damage  was  sustained  through  the  negli- 
gence of  one  acting  as  the  alter  ego  of  the  master.  —  not  as 
his  servant  but  as  his  agent.  If  the  negligence  were  wholly 
that  of  a  contractor  or  other  party  independent  of  the 
master,  the  master  will  not  be  liable ;  since  in  no  proper 
sense  can  the  act  of  such  a  person  be  deemed  the  master's 
act.^  K  the  negligent  party  were  an  agent,  the  question 
of  the  master's  liability  to  his  servant  will  (probably)  de- 
pend upon  the  consideration  whether  the  defective  prem- 
ises, machinery,  or  apparatus  through  which  the  injury-  was 
sustained  by  the  servant  belonged  to  the  master,  and, 
further,  whether  he  or  Ms  agent  had  notice  of  the  defect. 

J  S.  Of  CoxsTKUcrrvE  Xotick. 

It  is  a  well-settled  rule  of  law  that  if  facts  are  broogfat 
to  the  knowledge  of  a  person  which  would  put  him.  as  a 
man  of  common  sagacity,  upon  inquiry,  he  is  bound  to 
inquire  :  and.  if  he  fail  to  do  so.  he  will  be  chargeable  with 
notice  of  what  he  might  have  learned  upon  examination.- 
In  cases,  therefore,  in  which  a  defendanfs  liability.  «r 
delicto,  depends  nix)n  his  knowledge  of  a  particular  fact,  it 
is  enough  that  facts  have  been  brought  to  his  attention  of 

^  Compare  Hilliard  r.  Richardson.  3  Gnij.  349 :  s.  c.  Bigelow's  L. 
C.  Torts.  606. 

-  Warren  r.  Swett.  31  N.  H.  332 ;  Cambridge  Bank  r.  Delano.  48 
N.  T.  32t>:  Willis  r.  Vallette.  4  Met  (Ky.)  186;  Kennedy  r.  Green. 
3  Mjlne  &  K.  718. 

20 


306         DUTIES  OF  INDIVIDUALS  INTER  SE.    [Chap.  XVL 

sucli  a  nature  as,  if  pursued,  would  have  led  to  a  knowl- 
edge of  the  matter  in  question.  A  failure  to  make 
inquir}'  under  such  circumstances  will  be  evidence  of 
negligence. 

§  9.   Op  Contributory  Negligence. 

Generalh'  speaking,  it  is  a  defence  to  an  action  of  tort 
that  the  negligence  of  the  plaintiff  contributed  to  produce 
the  damage  of  which  he  complains.^  The  reason  of  this 
lies  in  the  consideration  that  a  man  is  not  liable  for  damage 
which  he  has  not  caused ;  or,  conversel}',  the  law  makes 
men  liable  in  tort  for  those  wrongs  alone  which  the}'  have 
caused.^  If  the  defendant  did  not,  either  personally  or  by 
another  under  his  express  or  implied  authority,  cause  the 
damage,  he  is  not  liable  ;  and  it  is  part  of  the  plaintiff's  case 
to  prove  that  the  defendant  caused  the  damage  of  which  he 
complains.^  Now,  if  there  intervened  between  the  act  or 
omission  of  the  defendant  and  the  damage  sustained  an 
independent  act  or  omission  which  contributed  to  effect 
the  damage,  it  follows  that  the  misfortune  might  not 
have  happened  but  for  that  act  or  omission  ;  and  hence 
the  plaintiff  cannot  prove  that  the  defendant  caused  the 
harm . 

In  some  cases,  the  situation  may  be  such  that  the  plain- 
tiff cannot  recover  even  when  the  defendant's  fault  was 
adequate  to  produce  the  injury  without  the  plaintiff's  neg- 
ligence, as  in  certain  cases  of  collision  where  the  fault  on 
each  side  is  contemporaneous.*  But  in  no  case  can  the 
plaintiff  recover  where  the  evidence  falls  short  of  showing 

1  Murpliy  v.  Deane,  101  Mass.  455. 

2  lb.  p.  4G4. 

3  Murphy  v.  Dcane,  supra.  Tlie  liability  of  a  master  for  the  (in 
fact)  unauthorized  torts  of  his  servant,  or  of  a  principal  for  the  like 
torts  of  his  agent  (which  is  probably  tlio  same  thinjr),  is  in  truth  an 
exception  to  legal  principles,  finding  its  origin  in  early  institutions. 

*  lb. 


§  9.]  ?:egligence.  807 

that  the  defendant's  act  or  omission  caused  or  was  adequate 
to  cause  the  injury. 

On  the  other  hand,  conditions  must  not  be  confounded 
with  causes.  The  mere  fact  that  a  person  or  his  property 
is  in  an  improper  position,  when,  if  he  had  not  been  there, 
no  damage  would  have  been  done  to  him,  does  not  pre- 
clude him  from  recovering.  Such  circumstance  is  only  a 
condition  to  the  happening  of  the  damage,  not  a  cause  of 
it.  The  misfortune  may  have  been  a  very  unnatural  and 
extraordinary  result  of  the  situation,  not  to  be  foreseen  in 
the  light  of  ordinary  events  ;  and,  when  that  is  the  case,  the 
fact  that  the  person  or  property  was  in  the  particular  situ- 
ation is  not  in  contemplation  of  law  a  cause  of  the  damage. 
A  man  may  in  the  day-time  fall  asleep  in  the  couutry  high- 
way, or  leave  his  goods  there,  and  recover  for  injur}'  by 
another's  driving  carelessly  over  him  or  them  ;  since, 
though  the  position  occupied  is  a  condition  to  the  damage, 
it  is  not  the  natural  result  of  the  act.^ 

The  law  therefore  considers  whether  the  conduct  of  the 
plaintiff  had  a  natural  tendenc}',  such  as  exists  between 
cause  and  effect,  to  place  the  party  or  his  property  in  the 
direct  wa^-  of  the  danger  which  resulted  in  the  disaster. 
If  it  had  not,  it  did  not  in  contemplation  of  law  contribute 
to  the  injur}'.  For  example  :  The  defendant  sails  a  vessel 
in  such  a  careless  manner  as  to  cause  a  collision  with  an- 
other vessel  on  which  the  plaintiff  is  a  passenger ;  the 
plaintiff  at  the  time  standing  in  an  improper  place  for  pas- 
sengers, to  wit,  near  the  anchor,  which  is  struck  by  the 
defendant's  boat  and  caused  to  fall  upon  the  plaintiff's  leg, 
breaking  it.  The  defendant  is  liable  ;  the  plaintiff's  stand 
ing  in  the  improper  position  not  contributing,  in  the  legal 
sense,  to  the  injury,  since  it  would  not  be  the  natural  and 
usual  result  of  a  collision  that  one  standing  there  would 

*  See  the  remarks  of  Parke,  B.,  in  Davies  v.  Mann,  10  Mees.  &  W. 
646,  540. 


808         DUTIES  OF  INDIVIDUALS  INTER  SE.    [Chap.  XVL 

be  hurt.*  Again  :  The  defendant  driving  carelessly  along 
the  highway  runs  against  and  injures  the  plaintiff's  horse, 
stra3'ing  improperly  therein,  and  fettered  in  his  forefeet  so 
as  not  to  be  able  to  move  with  freedom.  This  is  a  breach 
of  duty  to  the  plaintiff;  the  latter's  act  not  contributing  in 
the  true  sense  to  the  damage.^ 

In  accordance  with  the  same  principle,  it  is  stated  that  a 
traveller  may  be  riding  with  a  horse  or  carriage  which  he 
had  no  right  to  take  or  use,  or  on  a  turnpike  without  pay- 
ment of  toll,  or  with  a  speed  forbidden  by  law,  or  upon  the 
wrong  side  of  the  road  ;  or  his  team  may  be  standing  in 
the  street  of  a  town,  without  his  attending  b}'  them  and 
keeping  them  under  his  command  as  the  law  requires  ;  and 
in  none  of  these  cases  is  his  right  of  action  for  any  injury 
he  may  sustain  by  the  neghgent  conduct  of  another  affected 
by  these  circumstances.  He  is  none  the  less  entitled  to 
recover,  unless  it  appear  that  his  own  negligence  or  fault 
contributed  to  the  damage.^ 

And  the  same  is  equally'  true  though  the  plaintiff,  instead 
of  being  guilty  of  neghgence  merely,  is  a  positive  tres- 
passer, as  the  examples  elsewhei'e  given  of  parties  injured 
by  savage  dogs  or  spring-guns  while  trespassing  by  day 
upon  the  defendant's  premises  clearl}^  show  ;  *  for  it  is  not 
the  natural  or  usual  effect  of  trespassing  in  the  day-time 
(not  feloniousl}')  that  the  party  should  be  bitten  by  a  sav- 
age dog  not  seen  before  the  entrj",  or  maimed  by  the  dis- 
charge of  a  hidden  gun.  Wrongful  acts  or  omissions  cannot 
be  set  off  against  each  other,  so  as  to  make  the  one  excuse 

1  Greenland  v.  Chaplin,  5  Ex.  243.  Or,  as  Pollock,  C.  B.,  sug- 
gested, the  plaintiff  could  not  have  foreseen  the  consequences  of 
standing  where  he  did;  that  is,  such  consequences  were  unusual, 
non-natural,  and  not  the  common  effect  of  such  an  act. 

2  Davies  v.  Mann,  10  Mees.  &  W.  546. 

3  Norris  v.  Litchfield,  35  N.  H.  271,  Bell,  J. 

*  Loomis  V.  Terry,  17  Wend.  496;  Bird  v.  Holbrook,  4  Bing.  628; 
ante,  p.  289. 


§  9.]  NEGLIGENCE.  iJOC 

the  other,  unless  the}-  stand  respectively  in  the  situation  of 
true  causes  to  the  damage. 

In  this  connection,  special  attention  should  be  given  to 
cases  of  inj^uy  sustained  on  Sunday  through  the  defend- 
ant's negligence  by  a  plaintiff  engaged  in  acts  neither  of 
necessity  nor  of  charity ;  in  other  words,  in  acts  rendered 
unlawful  by  statute.  By  many  of  the  courts,  it  is  held  that 
the  plaintiff  is  not  thereby  precluded  from  recovering  for 
damage  sustained,  in  the  absence  of  explicit  language  to 
that  effect  in  the  statute  ;  and  this  on  the  ground  that  the 
mere  doing  of  the  illegal  act  is  not,  or  ma}-  not  be,  contribu- 
tor}' in  the  proper  sense  to  the  damage  sustained.'  For 
example  :  The  defendant,  a  town,  bound  to  keep  a  certain 
bridge  in  repair,  negligently  allows  it  to  get  out  of  good 
order ;  and  the  plaintiff,  without  notice  of  the  condition  of 
the  bridge,  in  attempting  to  drive  cattle  over  it  to  market 
on  the  Sabbath,  breaks  through  the  bridge,  several  of  his 
cattle  being  killed  and  others  hurt  thereb}'.  The  defend- 
ant is  guilt}'  of  a  breach  of  duty  to  the  plaintiff,  and  liable 
to  him  for  the  damage  sustained  ;  the  violation  of  the  Sun- 
day law  not  properly  contributing  to  the  result,  since  it  is 
not  the  natural  or  usual  result  of  tra^•elliug  on  Sunday  that 
damage  should  follow.^ 

This  is  clearly  correct  in  principle,  in  the  absence  of 
language  of  the  statute  plainly  intended  to  prohibit  all 
actions  for  damage  sustained  on  the  Sabbath,  except  such 
as  is  caused  without  any  violation  of  law  by  the  injured 
party ;  but  the  contrary  rule  prevails  in  some  States.' 
This  contrary  rule,  however,  is  considerably  narrowed  by 

1  Sutton  V.  "Wauwatosa,  21  "Wis.  21 ;  s.  c.  Bigclow's  L.  C.  Torts, 
711 ;  Mohney  v.  Cook,  26  Penn.  St.  342;  Corey  v.  Bath,  35  N.  H.  530; 
Carroll  v.  Staten  Island  R.  Co.,  58  N.  Y.  126. 

2  Sutton  I'.  Wauwatosa,  supra. 

'  Bosworth  IK  Swansea,  10  Met.  363;  Jones  v.  Andover,  10  Allen, 
18;  Connolly  v.  Boston,  117  Mass.  64. 


310         DUTIES  OF  INDIVIDUALS  INTER  SE.    [Chap.  XVL 

the  courts  which  adhere  to  it.  It  is  considered  not  to 
appl}-  to  cases  in  which  the  defendant  has  misused  prop- 
erty of  the  phaintiff  hired  on  Sunday.^  So,  too,  it  is  held 
by  the  same  court  that  one  who  is  walking  on  the  highway 
on  Sunday,  simply  for  exercise  and  fresh  ah',  maj'  recover 
against  a  town  for  negligence  whereby  he  has  sustained 
damage.^ 

It  is  sometimes  said  that,  if  the  plaintiff  could  have 
avoided  the  disaster  by  the  exercise  of  reasonable  care,  he 
is  not  entitled  to  complain  of  the  negligence  of  the  defend- 
ant.^ But  this  is  to  be  understood  as  ha^^ng  reference  to 
the  state  of  facts  at  the  time  of  and  just  preceding  the  hap- 
pening of  the  injury,  and  not  to  the  previous  fact  of  the 
plaintiff's  putting  himself  or  propert}^  where  the  misfortune 
occurred  ;  unless,  indeed,  it  were  the  natural  effect  of  such 
first  act  that  the  misfortune  should  follow.  In  the  moment 
of  actual  peril,  the  plaintiff  must  not  be  guilty  of  faihng  to 
exercise  such  reasonable  care  under  the  circumstances  as 
he  can,  to  protect  Limself  against  damage. 

One  who,  however,  becomes  paralj'zed  b}'  fear  through 
the  misconduct  of  the  defendant,  and  while  in  such  a  state 
of  mind,  and  owing  to  it,  rushes  into  danger  and  is  hurt, 
is  not  thereby  guiltj'  of  contributory  neghgence.  The  de- 
fendant's unlawful  act  has  caused  the  fear  and  loss  of 
presence  of  mind,  and  what  happens  afterwards  is  but  the 
natural  effect  of  the  act.  For  example  :  The  defendant  is 
carelessly  driving  an  express  wagon  along  the  sidewalk  of 

1  Hall  V.  Corcoran,  107  Mass.  251,  overruling  Gregg  v.  Wyman, 
4  Cush.  .322,  upon  the  authority  of  which  Wheldon  v.  Chappel, 
8  R.  I.  230,  was  decided.  Sec,  also,  Woodman  v.  Hubbard,  25  N.  H. 
67;  Morton  v.  Gloster,  40  Maine,  520. 

2  Hamilton  v.  Boston,  14  Allen,  475  See,  further.  Cox  v.  Cook, 
lb.  105  ;  Feital  v.  Middlesex  R.  Co.,  109  Mass  398. 

'  Buttcrfield  v.  Forrester,  11  East,  60 ;  Bridge  v.  Grand  June,  Ry. 
Co.,  3  Mees.  &  W.  244;  Davies  v.  Mann,  10  Mees.  &  W.  546;  Tuff  w. 
Warnian,  5  Com.  B.  n.  s.  673. 


§  9.]  NEGLIGENCE.  311 

the  street  of  a  cit}',  at  a  rapid  rate,  which  suddenly  conies 
up  behind  the  plaintiff,  when  she  instinctivel}'  springs  aside 
to  escape  danger,  and  in  so  doing  strikes  her  head  against 
the  wall  of  a  building,  and  is  hurt.  The  defendant  is 
Uable.i 

On  the  other  hand,  it  is  sometimes  said  that  the  plain- 
tiff ma}'  be  entitled  to  recover,  if  the  defendant  might,  by 
the  exercise  of  care  on  his  part,  have  avoided  the  conse- 
quences of  the  negligence  of  the  plaintiff.^  But  this  doc- 
trine appears  to  be  applicable  only  to  cases  in  which  the 
plaintiff's  neghgence  precedes  that  of  the  defendant. 
Where  the  negligence  of  the  two  persons  is  contempo- 
raneous, and  the  fault  of  each  operates  directl}-  to  cause 
the  injury,  the  rule  is  declared  to  be  that  the  plaintiff  can- 
not recover  if  b}'^  due  care  on  his  part  he  might  have 
avoided  the  consequences  of  the  negligence  of  the  defend- 
ant.^ If  the  doctrine  referred  to  were  applied  to  cases  of 
contemporaneous  negligence,  either  part}^  to  a  collision 
caused  b}'  their  united  carelessness  might  be  entitled  to 
recover  against  the  other ;  when,  in  truth,  neither  can 
recover.* 

The  true  question  in  all  cases  appears  to  be  whether 
there  was  negligence  or  fault  on  the  part  of  the  plaintiff 
contributing  directl}',  as  a  proper  (or  proximate^)  cause,  to 

1  Coulter  V.  American  Exp.  Co.,  56  N.  Y.  585.  Whether  the 
fright  or  confirsion  was  caused  by  the  defendant,  and  possibly,  too, 
whether  it  was  reasonable  under  the  circumstances  is  a  question  for 
the  jury.  Johnsons.  West  Chester  &  P.  R.  Co.,  70  Penu.  St.  357; 
Galena,  &c.,  Ti.  Co.  v.  Yarwood,  17  111.  509.  What  would  be  reason- 
able in  a  child  might  not  be  reasonable  in  a  man.  Filer  v.  New  York 
Cent.  R.  Co.,  49  N.  Y.  47. 

2  Tuff  V.  Warman,  5  Com.  B.  n.  s.  573. 

8  Murphy  v.  Deane,  101  Mass.  455,  Wells,  J.  *  lb. 

^  Causes  are  usually  spoken  of  in  the  law  books  as  proximate  and 
remote,  —  causa  proxima  non  remota  spectatiir,  —  but  the  latter  kind  is 
no  proper  cause  at  all.  The  expressions  are  unfortunate  and  mis 
leading,  besides  being  unnecessary. 


312         DUTIES  OF  INDIVIDUALS  INTER  SE.    [Chap.  XVL 

the  occurrence  from  which  the  injury  arose  ;  if  there  was, 
the  plaintiff  cannot  recover.^ 

In  some  of  the  States,  however,  the  question  of  the 
liability  of  the  defendant  in  cases  of  contributory  negli- 
gence or  fault  by  the  plaintiff  is  determined  b}^  compari- 
son ;  the  doctrine  being  termed  the  doctrine  of  comparative 
neghgence.  The  principle  is,  that  the  plaintiff  is  consid- 
ered entitled  to  recover  if  the  defendant's  neghgence 
exceeded  Ids  own,  and  that  the  defendant  is  not  Uable  if 
the  plaintiff's  negligence  was  equal  to  or  exceeded  his  own. 
The  rule  is  borrowed  from  the  admiralty  law."^ 

Thus  far  of  the  contributor}^  acts  or  omissions  of  the 
plaintiff.  But  it  may  be  that,  between  the  wrongful  act  of 
the  defendant  and  the  damage  sustained  by  the  plaintifi", 
there  intervened  an  act  of  a  third  person  or  agencj'  which 
directly-  produced  the  damage.  If  this  be  the  case,  and 
the  misfortune  would  not  have  certainly  followed  without 
it,  the  defendant  similarlj-  will  not  be  liable.  For  example  : 
The  defendant  sells  gunpowder  to  the  plaintiff,  a  boj'  eight 
years  old,  who  takes  it  home  and  puts  it  into  a  cupboard, 
where  it  lies  for  more  than  a  week,  with  the  knowledge  of 
the  child's  parents.  The  boy's  mother  now  gives  him 
some  of  the  powder,  which  he  fires  off  Avith  her  knowledge. 
This  is  done  a  second  time,  when  the  child  is  injured  by 
the  explosion.  The  defendant  is  not  liable,  his  negligence 
in  seUing  the  powder  to  the  boj'  not  being  the  proper  cause 
of  the  damage.^ 

Indeed,  the  defendant  can  never  be  liable  when  any 
thing  out  of  the  natural  and  usual  course  of  events  arises 
or  transpires  in  such  a  way  as  to  make  the  defendant's 
negligence,  otherwise  harmless,  productive  of  injur}-.  A 
whirlwind   does   not   usually  arise  on   a  quiet   day,   and 

1  Murphy  v.  Deane,  supra. 

2  Chicago,  &c.,  R.  Co.  v.  Van  Patten,  64  111.  610;  111.  Cent.  R.  Co.  v. 
Baches,  59  111.  379.     See  O'Keefe  v.  Chicago,  &c.,  R.  Co.,  32  Iowa,  4G7 

^  Carter  v.  Towne,  103  Mass.  507. 


§  9.]  NEGLIGENCE.  313 

hence,  though  a  person  should  build  a  small  fire  in  the 
street,  contrary  to  law,  on  a  mild  da}',  he  would  not  (prob- 
abl}')  be  liable  for  the  consequences  of  a  whirlwind  sud- 
denly' springing  up  and  scattering  the  fire,  to  the  damage 
of  another.^ 

The  case  will  be  different  if  the  part}"  acted  with  knowl- 
edge respecting  the  intervening  act  and  of  its  probable 
eflfects.  In  this  case  he  will  be  liable.  For  example  :  The 
defendant  shoots  a  pistol  against  a  polished  surface  in  a 
thoroughfare,  at  such  an  angle  as  to  render  it  lilcely  that 
the  ball  will  glance  and  hit  some  one.  It  does  glance  and 
hits  the  plaintiff.  The  defendant  has  caused  the  injury 
and  is  liable.^  Again :  The  defendant  throws  a  lighted 
squib  into  a  market-house  on  a  fair  day,  which  strikes  the 
booth  of  A,  who  instinctively  throws  it  out,  when  it  strikes 
the  booth  of  B.  The  latter  casts  it  out  in  the  same  man- 
ner, and  it  now  strikes  the  plaintiff  in  the  face,  injuring 
him.  The  defendant  is  liable.^  Again :  The  defendant, 
a  manufacturer  of  drugs,  negligentl}'  labels  a  jar  of  bella- 
donna, put  up  b}'  him,  as  dandelion,  the  former  a  poi- 
sonous, and  the  latter  a  harmless,  drug.  The  jar  passes 
ft'om  the  defendant  to  a  wholesale  dealer,  then  to  a  retail 
dealer,  and  a  portion  of  it  then  to  the  plaintiff,  who  hujs 
and  takes  it  as  dandelion.  The  defendant  is  Uable  ;  the 
intermediate  parties  having  simply  carried  out  the  pre- 
sumed intention  of  the  defendant.* 

In  cases  like  the  latter,  however,  where  the  alleged 
breach  of  duty  is  directly  involved  in  a  breach  of  contract, 
the  English  courts,  and,  to  some  extent,  the  American, 

1  Compare  Insurance  Co.  v.  Tweed,  7  Wall.  44. 

2  This  example  is  fairly  borne  out  by  Scott  v.  Shepherd,  3  Wils 
403.  3  Scott  V.  Shepherd,  supra. 

*  Thomas  v.  Winchester,  6  N.  Y.  397 ;  s.  c.  Bigelow's  L.  C.  Torts, 
602.  The  reason  given  by  the  court,  however,  was  that  the  defend 
ant,  being  engaged  in  a  very  dangerous  business,  acted  at  his  own 
peril. 


314         DUTIES  OF  INDIVIDUALS  INTER  SE.   [Chap.  XVL 

deny  the  liability  of  the  defendant  to  any  one  except  to 
the  party  with  whom  he  made  the  contract,  —  a  point 
elsewhere  noticed.^  The  American  cases  are  not  alto- 
gether consistent,  even  in  the  same  State ;  but  it  is 
apprehended  that  the  true  rule  of  law,  though  it  is  not, 
perhaps,  fully  supported  by  all  the  authorities,  is  that, 
if  the  defendant  can  be  fairly  presumed  to  have  in- 
tended the  acts  of  the  intermediate  agency,  he  will  be 
liable,  though  his  act  was  a  breach  of  contract  with 
another.  The  fact  of  the  existence  of  a  duty  to  the 
person  with  whom  he  contracted  is  not  inconsistent  with 
the  existence  of  another  duty  respecting  the  same  thing. 
The  duty  to  forbear  to  do  negligently  a  thing  obviously 
harmful,  if  not  properly  done,  preceded  the  formation  of 
the  contract ;  and  it  is  difficult  to  see  how  that  duty,  owed 
to  all  persons,  could,  by  a  contract  made  with  one  or 
several,  be  abrogated  as  to  others. 

The  American  authorities,  elsewhere  referred  to,^  which 
declare  that  a  telegraph  company  is  liable  to  the  receiver 
of  a  message  for  negligence  in  the  transmission,  though 
the  contract  of  transmission  was  made  with  the  sender 
alone,  afford  support  to  the  above  doctrine  ;  and  there  are 
decisions  on  other  subjects  which  give  it  countenance.* 

1  Ante,  pp.  110,  111,  277.  "''  A7ite,  p.  277. 

3  United  Soc.  v.  Underwood,  9  Bush,  609 ;  Coughtry  v.  Globe 
Woollen  Co.,  56  N.  Y.  124 ;  Hodges  v.  New  England  Screw  Co.,  1 
R.  I.  312.  See  Bigelow's  L.  C.  Torts,  617-619.  But  see  Fairmount 
Ry.  Co.  V.  Stutler,  54  Penn.  St.  375,  which,  however,  is  inconsistent 
with  New  York  &  W.  Tel.  Co.  v.  Dryburg,  35  Penn.  St.  298.  As  to 
the  English  doctrine,  see  Winterbottom  v.  Wright,  10  Mees.  &  W. 
109;  CoUis  v.  Selden,  Law  R.  3  C.  P.  495;  Alton  v.  Midland  Ry.  Co., 
19  Com.  B.  N.  8.  213.  In  accordance  with  the  rule  in  England,  the 
person  who  buys  a  wagon  of  a  retail  dealer  cannot,  it  seems,  main- 
tain an  action  against  the  manufacturer  for  mere  negligence  in 
its  construction,  resulting  in  injury  to  the  purchaser;  though  the 
manufacturer  made  the  wagon  for  the  market,  knowing  tliat  it 
was   to  be  sold  by   the  retail   dealer  for  use.     Compare   Winter- 


§  9.]  NEGLIGENCE.  315 

If  the  duties  existing  between  the- parties  be  those  of  car- 
rier and  passenger,  or  bailor  and  bailee,  for  reward,  the 
carrier  or  bailor  will  be  hable  for  the  damage  produced  by 
a  breach  of  his  contract,  due  to  his  own  negligence,  even 
though  the  negligence  of  a  third  person  should  contribute 
to  the  damage  sustained  ;  for  the  party  agreed  to  exercise 
due  care,  and  has  not  done  so.^  For  example :  The  de- 
fendants, a  railroad  company,  contract  to  carry  the  plain- 
tift'  to  W.,  but  on  the  way  the  train  carrying  the  plaintiff 
is  brought  into  collision  with  the  train  of  another  railroad 
company,  at  a  crossing,  through  the  negligence  of  the 
managers  of  both  roads,  and  the  plaintiff  suffers  injury 
thereby.  The  defendants  have  violated  their  engagement 
with  the  plaintiff,  and  are  liable  for  the  damage  sustained 
by  him  ;  -  the  damage  being  the  natural  effect  of  the  de- 
fendant's negligence. 

If,  however,  the  defendant  was  not  at  fault  in  any 
respect  at  the  time  of  the  injury,  or  if,  though  at  fault  at 
the  time,  that  fault  had  no  connection  with  the  damage 
sustained  by  the  plaintiff,  the  defendant  cannot  be  liable  : 
the  wrong  has  been  done  by  the  third  person.  But  the 
defendant  will  (probably)  be  liable  for  the  natural  conse- 
quences of  his  negligence,  contributing  to  the  damage, 
though  the  misfortune  would  not  have  occurred  but  for 

bottom  V.  Wright,  supra.  See,  however,  CoUis  v.  Sclclen,  supra.  It  is 
conceived  that  in  America  (except  perliaps  in  Pennsylvania)  an  action 
could  be  maintained  in  such  a  case.  It  would,  doubtless,  be  otherwise, 
if  the  wagon  was  made  to  order  for  the  use  of  a  particular  person, 
and  then  sold  by  him  to  the  plaintiff;  for  in  this  case  the  manufac- 
turer never  intended  a  use  of  the  wagon  by  the  latter.  It  was  not  in 
the  usual  and  natural  course  of  things  that  a  vehicle  made  for  a  par- 
ticular person  should  be  sold  by  him.  It  should  be  observed,  how- 
ever, that  damage  to  third  persons  received  in  the  course  of  and  by 
the  negligent  performance  of  a  contract  is  actionable  by  them  by  all 
the  authorities. 

1  Burrows  v.  March  Gas  Co.,  Law  R.  7  Ex.  96 ;  Eaton  v.  Boston  & 
L.  R.  Co.,  11  Alien,  500.  ^  Eaton  v.  Boston  &  L.  li.  Co.,  supra. 


316         DUTIES  OF  INDIVIDUALS  INTER  SE.    [Chap.  XVL 

the  act  of  the  third  person.^  This  will  cortainlj'  be  the 
ease  if  the  damage  was  the  natural  result  of  the  defend- 
ant's negligence,  as  where  the  switchman  of  a  railroad 
carelessly  puts  a  train  on  the  track  of  a  rapidly  approach- 
ing train  belonging  to  another  line,  and  a  collision  follows.'^ 
So,  too,  it  is  the  natural  result  of  sending  a  train  of  cars 
off  the  usual  time,  without  making  signals  of  the  fact,  that 
a  collision  should  follow,  in  the  case  of  a  railroad  running 
trains  at  short  intervals  ;  but  it  is  not  the  usual  result  of 
carelessly  running  off  time  that  an  engine  should  be  mali- 
ciously started  by  a  stranger  and  collide  with  the  train  thus 
off  time.  In  the  former  case,  the  carrier  would  be  liable 
for  injury  sustained  b}-  a  passenger  by  reason  of  the  colli- 
sion ;  in  the  latter  case,  the  coYitrary  would,  in  principle, 
be  true. 

In  those  cases  of  contract  in  which  a  party  assumes  the 
position  of  an  insurer,  as  in  the  case  of  a  common  carrier 
of  goods,  the  question  of  contributory  negligence  on  the 
part  of  third  persons,  or  of  the  action  of  certain  things  over 
which  the  defendant  has  no  control,  becomes  immaterial. 
Being  an  insurer,  the  defendant  is  bound  to  perform  his 
contract  at  all  events,  unless  prevented  by  the  plaintiff  or 
the  act  of  God. 

The  rule  prevails  in  England  and  in  several  of  the  States 
of  this  country,  that  a  passenger  in  a  stage  or  railway 
coach,  or  other  vehicle,  becomes,  by  the  act  of  obtaining 
passage,  identified  in  law  with  the  driver  or  manager  of 
the  vehicle.  The  effect  of  this  doctrine  is,  that  in  an 
action  by  the  passenger  against  a  third  person  for  negli- 
gence, whereby  the  former  has  suffered  damage  in  the 
course  of  the  ride  or  journey,  negligence  on  the  part  of 
the  driver  or  manager  of  the  vehicle  in  which  the  plaintiff 
has  taken  passage,  contributing  to  the  misfortune,  is  the 
contributory  negligence  of  the  plaintiff.  The  plaintiff, 
therefore,  is  not  entitled  to  recover,  though  he  ma}'  him- 

^  Eaton  V.  Boston  &  L.  R.  Co.,  supra.  2  ib. 


§  9.]  NEGLIGENCE.  317 

self  have  been  free  from  fault. ^  For  example :  The  de- 
fendant, owner  of  a  stage-coach,  by  her  driver's  negligence, 
runs  over  and  kills  the  plaintiff's  intestate,  while  he  is 
ahghting  from  another  stage-coach  ;  which  latter  coach,  by 
the  negligence  of  the  driver,  has  stopped  at  an  improper 
place  for  alighting.  The  latter's  negligence  is  properly 
contributor}',  Init  the  deceased  was  not  personally  at  fault. 
The  defendant  is  deemed  not  liable.'^ 

This  doctrine  has  been  much  criticised  and  often  denied 
by  other  courts  ;  ^  and,  so  far  as  it  is  put  on  the  ground  of 
identification,  it  is  apprehended,  not  without  reason.  It  is 
difficult  to  understand  how  the  plaintiff  can  become  iden- 
tified with  the  driver  of  the  carriage,  when  the  driver  is 
wholly  under  the  control  of  another.  The  driver  cannot 
be  the  passenger's  servant  in  an^'  accurate  sense  in  such  a 
case  ;  since  the  essential  element  of  the  relation  of  master 
and  ser\^ant  is  wanting,  to  wit,  authorit}'  over  the  supposed 
sei'vant.  And,  for  the  same  reason,  the  driver  cannot  be 
considered  as  the  passenger's  agent.  The  passenger  could 
not  contract  directl}'  with  the  driver  in  the  first  instance, 
or  require  him  to  go  or  to  sta}' ;  nor  could  he  compel  him 
to  stop  b}-  the  way,  or  direct  him  to  take  a  particular  road, 
or  how  to  drive,  or  how  to  pass  a  coach  or  an  obstruction.* 

^  Thorogood  r.  Bryan,  8  Com.  B.  115;  Armstrong  v.  Lancashire 
Ey.  Co.,  Law  R.  10  Ex.  47 ;  Cleveland,  &c.,  R.  Co.  v.  Terry,  8  Ohio 
St.  670 ;  Puterbaugh  v.  Reason,  9  Ohio  St..  484 ;  Lockhardt  v.  Lich- 
tenthaler,  46  Penn.  St.  151 ;  Smith  v.  Smith,  2  Pick.  621. 

2  Thorogood  v.  Bryan,  sttpra. 

8  Chapman  v.  New  York  &  N.  H.  R.  Co.,  19  N.  Y.  341 ;  Coleman 
V.  New  York  &  N.  H.  R.  Co.,  20  N.  Y.  492  ;  Webster  v.  Hudson  River 
R.  Co.,  38  N.  Y.  260 ;  Danville,  &c.,  Turnp.  Co.  v.  Stewart,  2  Met. 
(Ky.)  119;  The  Milan,  1  Lush.  388;  Brown  v.  McGregor,  Hay 
(Scotl.),  10;  1  Smith's  L.  C.  220  (4th  Eng.  ed.). 

*  Identification,  in  any  such  sense  as  making  the  driver  or  mana- 
ger of  the  vehicle  the  servant  or  agent  of  the  passenger,  is  repudiated 
by  Pollock,  B.,  in  Armstrong  v.  Lancashire  &  Y,  R.  Co.,  Law  R.  10 
Ex.  47,  52. 


318  DUTIES  OF  INDIVIDUALS  INTER  SE.    [Chap.  XVL 

If,  however,  the  passenger  were  himself  at  fault,  as  by 
participating  in  the  negligent  conduct  of  the  driver,  or  by 
directing  it  in  advance,  it  is  clear  that  he  could  not  recover ; 
supposing  the  neghgence  to  have  contributed  to  the  mis- 
fortune. In  such  a  case  as  this,  he  makes  the  driver,  pro 
hac  vice,  his  serv^ant,  and  may  therefore  be  said  to  be 
"  identified"  with  him. 

The  criticism  above  suggested,  however,  bears  merely 
upon  the  ground  of  liability'  taken  by  the  courts,  and  not 
upon  the  rule  which  denies  the  liability  in  such  cases.  It 
is  unnecessar}'  to  take  the  position  that  the  passenger  is 
identified  with  the  carrier  in  order  to  show  that  the  defend- 
ant is  not  liable.  The  defendant  is  not  liable  because,  the 
act  of  another  having  contributed  to  the  misfortune,  he 
cannot  in  ordinar}'  cases  be  shown  to  have  caused  the  dam- 
age. This  would  be  equally  true,  as  has  already  been 
seen,^  had  the  contributor}'  act  or  omission  been  the  act  or 
omission  of  a  stranger  to  the  passage. 

If,  however,  the  injur}-  must  have  happened  in  the  natu- 
ral and  usual  course  of  events  as  the  result  of  the  defend- 
ant's negligence,  without  tlae  negligence  of  the  plaintiff's 
carrier,  the  defendant  must  in  principle  be  liable.  In  the 
example  above  given,  it  was  not  the  natural  and  usual 
result  of  the  defendant's  negligence  that  misfortune  should 
befall  the  plaintiff:  the  injur}'  could  not  have  happened 
without  the  contributory  negligence  of  another.  Hence, 
the  defendant  was  not  liable. 

The  rule  of  law  in  some  of  the  States  is,  however,  in- 
consistent with  this  explanation  ;  the  broad  position  being 
taken  that  the  passenger  is  entitled  to  recover,  if  himself 
free  from  contributory  negligence,  though  his  carrier  was 
guilty  of  contributor}'  negligence  and  could  not  maintain 
an  action  against  the  same  defendant.^    But  it  is  appre- 

1  Ante,  p.  312. 

2  Chapman  v.  New  York  &  N.  H.  R.  Co.,  and  other  cases,  supra. 


§  9.]  NEGLIGENCE.  31 P 

hendod  that  the  courts  were  misled  by  the  use  of  the  term 
"identification"  by  the  Enghsh  judges.  It  is  now  con- 
ceded in  England  (as  it  was  doubtless  alwaj-s  meant)  that 
the  question  really  is,  whether  the  defendant's  act  was  the 
proximate  cause  of  the  loss.-^  It  is  impossible  to  imdei'stand 
how  the  defendant  can  be  liable  if  this  be  not  the  case. 

It  should  be  observed  that  to  deny  the  liabilit}'  of  the 
defendant  in  such  cases  is  not  to  exempt  from  liability-  any 
of  the  participants  in  a  joint  tort,  since  there  is  no  joint 
tort  in  the  case.  A  joint  tort  is  committed  onl}'  when  sev- 
eral persons  participate  by  consent  in  the  illegal  act  or 
omission,  or  when  some  of  them  act  at  the  instance  or 
command  of  others.^ 

In  like  manner,  the  negligence  of  the  parent  or  guardian 
or  person  in  charge  of  a  young  child,  in  allowing  the  child 
to  fall  into  danger,  is  deemed  by  man}-  of  the  courts  imput- 
able to  the  child,  so  as  to  affect  the  child  with  contributory 
negligence  in  all  cases  in  which  the  parent  or  guardian 
would  in  the  same  situation  be  barred  of  a  right  of  action.^ 
For  example  :  The  defendants,  a  railroad  compan}',  b}'  the 
negligence  of  their  sei-vants  in  the  course  of  their  employ- 
ment and  the  contributory  negligence  of  a  person  in  charge 
of  the  plaintiff,  a  child  too  young  to  take  care  of  himself, 
injured  the  plaintiff.  The}'  are  deemed  not  liable  for  the 
misfortune.^ 

This  doctrine,  however,  is  not  accepted  bj'  all  of  the 
courts,  and  has  often  been  met  with  the  same  answer  that 
has  been  given  to  the  doctrine  of  imputing  to  passengers 
the  negligence   of  their   carriers.     The   negligence   of  a 

1  Armstrong  i'.  Lancashire  &  Y.  Ry.  Co.,  supra. 

^  See  the  chapter  on  Conspiracy,  ante,  pp.  91,  93. 

8  Waite  V.  Northeastern  Ry.  Co.,  El.  B.  &  E.  719;  Holly  v.  Boston 
Gas  Co.,  8  Gray,  123;  Callahan  v.  Bean,  9  Allen,  401;  Pittsburgh, 
&c.,  R.  Co.  V.  Vining,  27  Ind.  513 ;  Lafayette,  &c.,  R.  Co.  v.  Huffman, 
28  Ind.  287. 

*  Waite  V.  Northeastern  Ry.  Co.,  supra. 


320         DUTIES  OF  INDIVIDUALS  INTER  SE.    [Chap.  XVL 

parent  or  custodian  of  a  child,  it  is  said,  cannot  properly 
be  imputed  to  the  child  ;  and,  supposing  the  child  incapa- 
ble of  negligence,  the  conclusion  is  reached  that  he  can 
recover  for  injuries  sustained  b}'  the  negligence  of  another, 
though  the  negligence  of  the  child's  parent  or  guardian 
contributed  to  the  misfortune.^  For  example  :  The  defend- 
ants, a  railroad  company,  run  over  the  plaintiff,  a  child  of 
tender  years,  while  crossing  the  defendants'  track ;  the 
plaintiff's  parents  negligently  permitting  the  child  to  be 
upon  the  track.  The  plaintiff  is  deemed  entitled  to  re- 
cover.^ 

It  is  clear  that  if  the  child  himself  be  guilt}-  of  contribu- 
tory negligence  (supposing  him  capable  of  negligence), 
apart  from  the  negligence  of  his  parent  or  guardian,  there 
can  be  no  recover}- ;  and  whether  the  child  be  capable  of 
personal  negligence  is  a  question  of  fact,  depending  upon 
his  age  and  ability  to  take  proper  care  of  himself.^  It  has 
sometimes  been  said  that  the  same  discretion  is  necessary 
in  a  child  that  is  required  of  an  adult.''  This,  however, 
could  onl}-  be  true,  it  should  seem,  in  those  cases  in  which 
the  child  is  sufficiently  mature  to  be  able  to  take  perfect 
care  of  himself.  As  to  other  cases,  the  better  rule  is  that, 
so  far  as  the  question  of  the  child's  negligence  is  concerned, 
it  is  only  necessary  that  he  should  exercise  such  care  as  he 
reasonably  can,  or  as  children  of  the  same  capacity  gen- 
erall}-  exercise.^ 

In  the  case  of  a  child  too  3-oung  to  take  care  of  himself, 
it  should  also  seem  that,  if  the  negligence  of  the  parent  or 
person  in  charge  of  him  were  in  the  proper  sense  contribu- 

1  Belk'fontaine  &  I.  R.  Co.  v.  Snyder,  18  Ohio  St.  399;  North  Penn. 
R.  Co.  V.  Malioney,  57  Penn.  St.  187  ;  Louisville  Canal  Co.  v.  Murphy, 
9  Bush,  522. 

^  Bcllefontaine  &  I.  R.  Co.  v.  Snyder,  supra. 

8  Lynch  v.  Smith,  supra ;  Lynch  v.  Nurdin,  1  Q.  B.  29. 

*  Burke  v.  Brooklyn  R.  Co.,  49  Barb.  529. 
^  *  Lynch  v.  Smith,  supra. 


§  9.]  NEGLIGENCE.  321 

tory,  — that  is,  if  the  misfortune  was  the  natural  and  usual 
result,  as  efl'ect  follows  cause,  of  the  negligence,  —  the 
defendant  cannot  be  liable  ;  since  the  plaintiff  cannot  prove 
that  the  defendant  caused  the  injury.  If,  however,  the 
fault  of  the  parent  or  guardian  did  not  contribute  to  the 
misfortune,  the  defendant  should  be  Uable.^  The  parent 
or  guardian  could  recover  for  an  injury  done  to  himself  un- 
der such  circumstances ;  and  a  fortiori  should  a  young 
child,  incapable  of  neghgence,  be  entitled  to  recover  in 
such  a  case.  And  the  same  would  be  true  of  negligence 
on  the  part  of  the  child  (supposing  him  capable  of  negli- 
gence) when  such  fault  did  not  contribute  to  the  injury. 
For  example :  The  defendant,  a  hackman,  carelessly  runs 
over  a  child  five  years  of  age,  in  a  cit}',  while  the  child  is 
crossing  a  street  alone,  on  his  waj'  home  from  school.  The 
child  is  not  guilty  of  anj-  negligence  further  than  may  be 
implied  from  going  alone ;  and  as  to  this  the  child's  parent 
may  be  negligent.  The  defendant  is  liable  ;  the  neghgence 
of  the  child  (if  there  was  any  in  his  going  alone)  and  of 
the  parent  (if  found  to  exist)  not  contributing  to  the  mis- 
fortune, since  it  is  not  the  natural  and  usual  efl'ect  of  a 
child's  crossing  the  street  that  he  should  be  run  over.'^ 

If  the  parent  sue  for  himself,  upon  the  relation  of  mas- 
ter and  servant,  for  loss  of  service,  the  same  principles 
must  apply.  If  the  child  be  incapable  of  neghgence,  the 
question  wiU  be  whether  the  parent's  negligence  contrib- 
uted in  the  legal  sense  to  the  misfortune ;  and  if  the  child 
were  capable  of  neghgence,  and  were  in  fact  neghgent, 
whether  either  his  neghgence  or  the  parent's  was  contrib- 
utory.' 

1  Dil  V.  Forty-second  St.  R.  Co.,  47  N.  Y.  317,  323. 

2  Lynch  v.  Smith,  s«/)ra.  Of  course,  if  the  parent  or  child  had 
had  notice  of  the  danger  when  the  child  attempted  to  cross,  the  negli- 
gence would  have  been  contributory. 

8  Compare  lb. ;  Glassey  r.  Hestonville  Ry.  Co.,  57  Penn.  St.  172. 
21 


322         DUTIES  OF  INDIVIDUALS  INTER  SE.  [Chap.  XVL 

According,  then,  to  the  better  authorities,  the  parent's 
or  guardian's  negligence  is  "  imputable  "  ^  to  the  child  when 
that  negligence  properly  contributed  to  the  injury,  because 
the  defendant  cannot  be  shown  to  have  caused  the  misfor- 
tune. The  same  would  be  true  of  the  negligence  of  an  older 
brother  ^  or  sister  of  the  child,  or  of  a  stranger,  having 
the  temporary  charge  of  the  child.  When  the  negligence 
of  the  parent  or  guardian  or  other  person  did  not  contrib- 
ute to  the  injury,  it  is  not  imputable  to  the  child.  The 
question  in  that  case  is,  if  the  child  himself  were  negli- 
gent. 

Upon  a  surv^ey  of  the  whole  subject  of  the  present  sec- 
tion, it  will  thus  be  seen  that  the  weight  of  authority  justifies 
the  statement  that  there  is  nothing  peculiar  in  the  doctrine 
of  contributory  negligence.^  The  simple  question  in  any 
phase  of  the  subject  is.  Was  the  act  or  omission  of  the  de- 
fendant the  proximate  (that  is,  the  true,  efficient)  cause  of 
the  misfortune?  And  this  is  the  question  in  every  case 
of  disturbing  agencies. 

1  The  use  of  this  term  is  scarcely  less  objectionable  than  that  of 
"  identification "  in  the  case  of  carrier  and  passenger.  It  tends  to 
conceal  the  true  question  at  issue. 

2  See  Mulligan  v.  Curtis,  100  Mass.  512. 

8  The  rule  as  to  the  burden  of  proof  concerning  contributory 
negligence  is  not  uniform.  In  some  States,  it  is  necessary  for  the 
plaintiff  to  prove  that  he  was  exercising  due  care  when  the  misfor- 
tune happened.  In  other  States,  it  is  held  that  the  defendant  must 
prove  that  the  plaintiff  was  guilty  of  contributory  negligence.  Bige- 
low's  L.  C.  Torts,  726,  726.  The  first  named  rule  makes  a  peculiarity 
in  the  law  relating  to  this  subject. 


SPECIAL  NON-CONTRACTUAL  DUTIES.  323 


n.    SPECIAL  DUTIES. 

[This  title  is  intended  to  include  the  second  and  third  classes  of  duties 
mentioned  in  the  Introduction;  which  duties,  for  the  sake  of  brevity,  are 
here  termed  Special  Non-Contractual  Duties  and  Contractual  Duties.  These 
are  to  be  understood  as  logicalh'  distinct  from  the  General  Duties  which 
have  thus  far  been  under  consideration.  In  fact,  however,  they  have,  with 
tAvo  or  three  exceptions,  been  substantially  disposed  of  already  by  the  neces- 
sities of  their  connections;  and  it  is  now  necessary  to  do  no  more  than  state 
the  duties  themselves.] 


CHAPTER  XVn. 
SPECIAL    NON-CONTRACTUAL    DUTIES. 

Public  Officers. 

Statement  of  the  duty.  A,  a  public  officer,  owes  to  B  the 
duty  (1)  to  forbear,  without  due  authority,  to  arrest  or 
detain  him  or  enter  upon  his  premises ;  (2)  to  forbear  in 
other  things  to  exceed  the  bounds  of  or  act  without  a  valid 
authorit}',  to  the  damage  of  B  ;  (3)  not  to  omit,  to  the 
damage  of  B,  the  execution  of  a  lawful  command  made  at 
the  instance  of  B ;  (4)  not  to  omit,  to  the  damage  of  B, 
the  exercise  of  such  care  or  diligence  or  skill  in  the  per- 
fomaance  of  his  duties  as  a  prudent  man  would  exercise  in 
the  same  situation. 

I>fNKEEPERS. 

Statement  of  the  duty.  A,  an  innkeeper,  owes  to  B  the 
duty  to  receive  him  as  a  guest  into  his  inn,  provided  B 
present  himself  in  a  suitable  condition  or  manner  to  be 
received,  and  A  have  sufficient  room  for  him  in  his  inn. 


324  SPECIAL  DUTIES.  [Chap.  XVIL 

Common  Carriers. 

Statement  of  the  duty.  (1) .  A,  a  common  carrier  of  pas- 
sengers, owes  to  B  the  duty  to  receive  him  as  a  passenger 
in  his  vehicle,  provided  B  present  himself  in  a  suitable  con- 
dition or  manner  to  be  received,  and  A  have  sufficient  room 
for  him  in  his  vehicle.  (2) .  A,  a  common  carrier  of  goods, 
owes  to  B  the  duty  to  receive  B's  goods  for  transportation, 
provided  the  goods  be  in  a  fit  condition  to  be  received  and 
transported,  and  B  have  sufficient  room  for  them  in  his 
vehicle,  and  profess  to  carry  goods  of  the  class  to  which 
B's  goods  belong. 

Waste. 

Statement  of  the  duty.  A,  tenant  or  mortgagor  (in 
possession)  of  land,  owes  to  B,  reversioner  or  remainder- 
man, or  mortgagee,  the  duty  to  forbear  to  commit  injury 
to  the  inherita,nce  of  the  estate. 


CONTRACTUAL   DUTIES.  325 


CHAPTER  XVni. 

CONTRACTUAL  DUTIES.* 

Deceit  in  Sales. 

Statement  of  the  duty.  A  owes  to  B  the  duty  to  forbear 
to  mislead  him  to  his  prejudice,  in  the  negotiations  of  a 
sale  between  the  parties,  by  false  and  artful  representa- 
tions, apt  to  mislead. 

Innkeeper  and  Guest. 

Statement  of  the  duty.  A,  an  innkeeper,  owes  to  B,  his 
guest,  the  duty  to  protect  B's  property,  placed  in  the  cus- 
tody of  A,  against  loss  or  damage  not  caused  by  B,  unless, 
in  the  exercise  of  the  greatest  diligence,  loss  or  damage  is 
caused  by  the  act  of  God  or  vis  major  or  inevitable  accident. 

Common  Carriers  of  Passengers. 

Statement  of  the  duty.  A,  a  common  carrier  of  passen- 
gers, owes  to  B,  a  passenger  in  his  vehicle,  the  duty  not  to 
omit,  to  the  damage  of  B,  to  exercise  the  liighest  degree 
of  diligence,  care,  or  skill  practicable  in  the  particular 
branch  of  business  in  which  A  is  engaged. 

Common  Carriers  of  Goods. 

Statement  of  the  duty.  A,  a  common  carrier  of  goods, 
owes  to  B,  whose  goods  he  has  undertaken  to  carrj',  the 
duty  to  transport  those  goods  and  deliver  them  safel}',  if 

'  The  duties  here  specified  are  such  as,  when  violated,  may  be  re- 
dressed ex  delicto ;  the  breaches  as  stated  constituting  torts,  when  the 
injured  party  might  in  most  cases  sue  ex  contractu. 


320  SPECIAL  DUTIES.  [Chap.  XVm. 

not  prevented  b}-  B  or  the  nature  of  the  goods,  at  the  place 
designated,  unless,  iu  the  exercise  of  the  utmost  care  or 
diligence  to  do  so,  he  is  prevented  by  the  act  of  God  or 
vis  major  or  inevitable  accident. 

Other  Bailees. 

Statement  of  the  duty.  A,  a  bailee  who  is  not  a  common 
carrier,  owes  to  B,  for  whom  he  has  undertaken  a  trust, 
the  duty  not  to  omit,  to  the  damage  of  B,  to  exercise  such 
care,  skill,  or  diligence  in  the  execution  of  his  trust  as  a 
prudent  or  skilful  man  of  the  same  business  would  exercise 
in  the  same  situation. 

Other  Contractors. 

Statement  of  the  duty.  A,  who  has  contracted  with  B  for 
the  performance  of  an  act,  owes  to  B  the  duty  not  to  omit, 
to  the  damage  of  B,  to  exercise  such  care,  skill,  or  dili- 
gence in  the  performance  thereof  as  a  prudent  or  skilful 
man  of  the  same  business  would  exercise  in  the  same 
situation. 


STUDIES    IN    PLEADING 


STUDIES   IN  PLEADING. 

[The  following  Studies  in  Pleading  are  presented  as  suggestive  of  a  usefiil 
mode  of  reviewing  the  subjects  of  the  preceding  chapters.  Similar  exercises 
for  the  chapters  following  Deceit  can  be  easily  framed  by  the  instructor,  or, 
better  still,  by  the  student  under  the  direction  of  his  preceptor.] 


DECEIT. 

1.  From  the  judgment  given  on  the  demurrer  to  the  fol- 
lowing declaration,  deduce  the  rule  of  law  determined  :  — 

Declaration.  A.  B.,  b}'  E.  F.,  his  attorne}',  complains 
of  C.  D.,  who  has  been  summoned  to  answer  the  said 
A.  B.,  for  that  whereas  the  plaintiff,  befoi'e  and  at  the 
time  of  the  grievances  hereinafter  complained  of,    was    a 

wholesale  dealer  in  dry  goods  in  the  city  of and  State 

of ,  one  G.  H.  then,  on  the da}-  of applied 

to  the  plaintiff  and  requested  him  to  sell  goods  on  credit 
to  him,  the  said  G.  H.  And  the  plaintiff,  being  then  un- 
acquainted with  the  character  and  pecuniary  circumstances 
of  the  said  G.  H.,  was  referred  by  him  to  the  defendant 
for  information  respecting  the  same,  whereof  the  defend- 
ant afterwards,  and  before  the  sale  of  any  goods  by  the 
plaintiff  to  the  said  G.  H.,  had  notice,  and  the  defendant,  so 
having  notice,  was  interrogated  by  the  plaintiff  respecting 
the  character  and  pecuniary  circumstances  of  the  said  G.  H. 
Nevertheless,  the  defendant  well  knowing  the  premises,  and 
that  the  said  G.  H.  was  then  in  bad  and  insolvent  circum- 
stances, and  unfit  to  be  trusted  with  goods  on  credit,  but 
fraudulentl}-  intending  to  deceive  and  injure  the  plaintiff, 
then  falsely,  fraudulently,  and  deceitfully,  in  writing,  signed 


330  STUDIES   IN  PLEADING. 

by  hunself  the  defendant,  in  answer  to  certain  questions  so 
put  as  aforesaid  by  the  plaintiff,  represented  and  affii'med 
that  he  the  defendant  then  well  knew  the  said  G.  H. ,  and  had 
had  many  business  transactions  with  him,  and  that  he  the 
defendant  had  reason  to  believe,  and  did  believe,  the  said 
G.  H.  to  be  a  good  man,  and  able  and  wiUing  to  pay  for 
any  goods  which  the  plaintiff  might  sell  him  on  credit.  By 
means  whereof  the  plaintiff,  not  knowing  the  contrary  of 
the  said  representation,  but  believing  the  same  to  be  true, 
on  the  day  and  year  aforesaid,  and  on  divers  other  daj^s  since 
that  time,  did  sell  and  deUver  to  him  the  said  G.  H.  goods 
on  credit  to  the  amount  in  value  of  $10,000.  Whereas  in 
truth  the  said  G.  H.,  at  the  time  the  defendant  so  made 
the  said  representation  to  the  plaintiff,  was  in  bad  and  in- 
solvent circumstances,  and  not  fit  to  be  trusted  with  goods 
sold  to  him  on  credit.  And  the  plaintiff  further  says  that 
the  said  sum  of  money  which  was  to  be  paid  for  the  said 
goods  is  wholly  due  and  unpaid,  and  by  means  of  the  de- 
fendant's said  false  and  fraudulent  representation  the  plain- 
tifi"  is  likely  wholly  to  lose  the  same.  To  the  damage  of 
the  plaintiff  in  the  sum  of  $12,000,  wherefore  he  brings  his 
suit. 

Demurrer.  The  defendant  by  J.  K.,  his  attorney,  says 
that  the  plaintiff's  declaration  is  not  sufficient  in  law. 

Demurrer  overruled. 

2.  From  the  judgment  on  the  demuri'er  to  the  following 
declaration,  state  the  precise  points  decided,  and  deduce 
the  rule  of  law  determined :  — 

Declaration.  A.  B.,  by  E.  F.,  his  attorney,  complains 
of  C.  D.,  who  has  been  summoned  to  answer  the  said 
A.  B.,  and  says  that  the  plaintiff,  heretofore,  to  wit,  on 
the day  of ,  at  the  request  of  the  defendant,  bar- 
gained with  him  to  buy  of  him  a  certain  horse  for  a  certain 
sum  of  money,  to  wit  $r)00,  and  the  defendant  by  then 
falsely  warranting  the  said  horse  to  be  sound  and  gentle, 


STUDIES   IN  TLEADING.  331 

and  quiet  iu  harness,  then  sold  the  said  horse  to  the  plain- 
tift"  for  the  said  sum  of  $500,  which  was  then  paid  by  the 
plaintiff  to  the  defendant :  whereas  in  truth  the  said  horse 
was,  at  the  time  of  the  said  warranty  and  sale  thereof,  un- 
sound, unsteady,  not  gentle,  and  ungovernable  in  harness, 
and  hath  from  thence  hitherto  so  continued.  And  the 
plaintiff  further  sa3-s,  that  the  defendant,  by  means  of  the 
premises,  deceived  the  plaintifi'  on  the  sale  of  the  said 
horse  as  aforesaid.  And  thereby  the  said  horse  after- 
wards, to  wit,  on  the  da}-  and  year  aforesaid,  not  only 
became  of  no  use  or  value  to  the  plaintiff,  but  also  then 
kicked  and  broke  the  leg  of,  and  ruined  a  certain  other 
horse  of  the  plaintiff,  of  great  value,  to  wit,  of  the  value  of 
6250 ;  and  thereby  in  the  care,  feeding,  and  disposal,  of 
the  said  horse  first  mentioned,  the  plaintiff  was  i)ut  to 
great  expense;  to  his  damage  iu  all  the  sum  of  §1,000. 
Wherefore  he  brings  his  suit. 

Demurrer.  The  defendant,  b}'  J.  K.,  his  attornej^,  says 
that  the  plaintiff's  declaration  is  not  sufficient  in  law.  And 
the  defendant  shows  to  the  court  the  following  causes  of 
demurrer  to  the  said  declaration,  that  is  to  say:  (1)  The 
plaintiff  nowhere  in  his  declaration  alleges  that  the  defend- 
ant knew  that  the  said  horse,  sold  to  the  plaintiff  as  alleged 
in  his  declaration,  was  unsound,  unsteady,  not  gentle,  or 
ungovernable  in  harness :  (2)  The  plaintiff  nowhere  in  his 
declaration  alleges  that  he  (the  plaintifi")  did  not  know  that 
the  said  horse  so  sold  to  him  was  unsound,  unsteady,  not 
gentle,  or  ungovernable  in  harness,  and  that  he  believed 
the  said  horse  to  be  sound,  steady,  gentle,  and  governable 
in  harness :  (3)  The  plaintiff  nowhere  in  his  declaration 
alleges  that  the  defendant  intended  to  deceive  him  iu  the 
sale  of  the  said  horse  to  the  plaintiff:  (4)  And  the  plain- 
tiff's declaration  is  in  other  respects  informal,  uncertain, 
and  insufficient  in  law. 

Demurrer  overruled. 


332  STUDIES   IN  PLEADING. 

3.  From  the  judgment  on  the  demurrer  to  the  following 
declaration,  state  the  precise  point  decided,  and  supply  the 
missing  element :  — 

Declaration.  A.  B.,  by  E.  F.,  his  attorne}',  complains 
of  C.  D.,  who  has  been  summoned  to  answer  the  said  A.  B., 
for  that  whereas  the  defendant,  heretofore,  to  wit,  on  the 

day  of ,    was  possessed  and  owner  of  a  certain 

flock  of  sheep,  in  number,  to  wit,  one  hundred  sheep,  bar- 
gained with  the  plaintiff  to  sell  to  him  the  said  flock  for  the 
sum  of  $1,000  ;  and  the  defendant  having  then  falsely  and 
fraudulently  represented  to  the  plaintiff  that  none  of  the 
aforesaid  sheep  were  above  the  age  of  three  j'ears,  then, 
on  the  da}'  and  j-ear  aforesaid,  sold  to  the  plaintifi"  the 
whole  of  the  said  flock  of  sheep  as  one  entire  lot  for  the 
said  sum  of  $1,000,  which  amount  the  plaintiff  then  and 
there  paid  for  the  same  ;  whereas  in  truth  a  large  number, 
to  wit,  fifty  of  the  said  flock  of  sheep,  were  much  above 
the  age  of  three  3'ears,  and  were,  to  wit,  from  six  to  nine 
years  of  age,  as  the  defendant,  at  the  time  of  making  the 
said  false  and  fraudulent  representation,  well  knew.  And 
the  plaintiff  further  saith  that  b}'  means  of  the  premises 
the  said  flock  of  sheep,  so  sold  as  aforesaid  to  the  plaintiff, 
were  useless  to  him,  and  the  plaintiff  has  been  at  great 
expense  and  trouble  in  the  care  and  disposal  of  the  said 
sheep  ;  to  his  damage  in  all  in  the  sum  of  $1,000.  Where- 
fore he  brings  his  suit. 

Demurrer.  The  defendant,  by  J.  K.,  his  attorney,  says 
that  the  plaintiff's  declaration  is  not  sufficient  in  law. 

Demurrer  sustained. 

4.  From  the  judgTnent  on  the  demurrer  to  the  following 
declaration,  state  the  precise  point  decided,  and  supply  the 
missing  element :  — 

Declaration.  A.  B.,  b}^  E.  F.,  his  attornej',  complains 
of  C.  D.,  who  has  been  summoned  to  answer  the  said  A.  B., 
for  that  whereas  the  plaintiff,  before  and  at  the  time  of  the 


STUDIES   IN   PLEADING.  333 

grievances  hereinafter  complained  of,  Avas  possessed  and 
owner  of  certain  sliares  of  stociv  in  a  corporation  known 
as  the  Excelsior  Mining  Company,  to  wit,  of  one  hundred 
shares,  of  gi-eat  value,  to  wit,  of  the  market  value  of  $125 
per  share,  the  defendant  well  knowing  the  premises  and 
maliciously  intending  to  injure  the  plaintiff  in  respect  of 
his  said  stock,  and  to  depreciate  the  same  on  the  market, 
and  to  prevent  the  plaintiff  from  selhng  the  said  stock  at 
the  said  market  value,  maliciously,  falsely,  and  fraudu- 
lently on  the day  of ,  at ,  represented  and 

asserted  in  writing  to  divers  persons,  to  wit,  to  J.  R., 
S.  W.,  and  T.  M.,  that  the  said  Excelsior  Mining  Com- 
panj'  was  insolvent,  and  that  a  receiver  had  been  appointed 
by  the  Court  of  Chancery  to  take  charge  of  the  said  mine ; 
whereas  in  truth  the  said  mining  company'  was  not  at  that 
time,  nor  ever  before  or  since  had  or  has  been,  insolvent,  and 
no  receiver  has  ever  been  appointed  to  take  charge  thereof, 
but  on  the  contrary  the  said  mining  company  was  at  the 
time  of  the  said  false  and  fraudulent  representations  in  the 
possession  and  management  of  the  proper  officers  of  the  said 
corporation  ;  all  of  which  the  defendant,  before  the  griev- 
ances herein  complained  of,  on  the  day  and  year  aforesaid, 
well  knew.  And  the  plaintiff  further  says  that  the  defendant 
by  means  of  the  premises  falsely  and  fraudulentl}-  deceived 
the  said  J.  R.,  S.  W.,  and  T.  M.,  and  manj-  other  persons 
as  to  the  true  financial  state  and  control  of  the  said  mining 
company,  insomuch  that  neither  the}',  nor  either  of  them, 
nor  any  one  else,  would  give  the  plaintiff  the  said  sum  of 
$125  per  share  for  his  stock,  or  for  an}-  part  thereof,  though 
requested  so  to  do  ;  and  the  said  stock  has  by  means  of  the 
premises  become  greatly  reduced  in  value,  and  has  never 
since  the  defendant's  said  false  and  fraudulent  representa- 
tions been  worth  more  than  $50  per  share  on  the  market ; 
and  the  plaintiff  has  sustained  great  trouble  and  expense  in 
attempting  to  dispose  of  his  stock  in  the  said  corporation. 


334  STUDIES   IN  PLEADING. 

To  his  damage  in  the  sum  of  $10,000.  Wherefore  he  brings 
his  suit. 

Demurrer.  The  defendant,  b}'  J.  K.,  his  attorney,  saj'S 
that  the  plaintiff's  declaration  is  insufficient  in  law. 

Demurrer  sustained. 

5.  From  the  judgment  on  the  demurrer  to  the  following 
declaration,  state  the  precise  point  decided,  and  deduce 
therefrom  a  rule  of  law  :  — 

Declaration.  A.  B.,  by  E.  F.,  his  attorney,  complains 
of  C.  D.,  who  has  been  summoned  to  answer  the  said  A.  B., 
for  that  whereas  the  defendant,  heretofore,  to  wit,  on  the 

day   of was    possessed  as  owner  of  a  patent  for 

the  manufacture  of  treadles  to  sewing  machines  called  the 
"American  Treadle  Patent,"  and  being  then  desirous  of 
selling  and  disposing  of  the  said  patent  to  the  plaintiff,  on 
the  day  and  year  aforesaid,  contriving  to  deceive,  defraud, 
and  injure  the  plaintiff  in  this  behalf,  falsely  and  fraudu- 
lently represented  and  asserted  to  the  plaintiff  that  the  said 
patent  was  of  the  value,  at  the  least,  of  $5,000,  and  then 
offered  the  same  to  the  plaintiff  for  the  sum  of  $4,000,  and 
the  plaintiff,  not  knowing  the  said  representation  to  be  false, 
but  believing  it  to  be  true,  was,  by  means  of  the  said  false 
and  fraudulent  representation  and  assertion,  induced  to 
accept  the  said  offer,  and  to  pay,  and  he  did  then  pay  to 
the  defendant,  for  the  said  patent  the  sum  of  $4,000 ; 
whereas  in  truth  the  said  patent  was  utterly  worthless,  the 
pretended  invention  for  which  it  was  granted  not  being 
adapted  in  any  degree  to  accomphsh  the  purpose  claimed 
for  it  by  the  defendant.  And  thereby  the  plaintiff  was  put 
to  great  trouble  and  expense  in  endeavoring  to  sell  and 
dispose  of  the  said  patent.  To  his  damage  in  the  sum  of 
$5,000.     Wherefore  he  brings  his  suit. 

Demurrer.  The  defendant,  by  J.  K.,  his  attorney,  says 
that  the  plaintiff's  declaration  is  insufficient  in  law. 

Demurrer  sustained. 


STUDIES  IN  PLEADIXG.  335 

6.  From  the  judgment  given  on  the  demurrer  to  the  plea 
in  the  following  case,  state  the  precise  point  decided,  and 
deduce  a  rule  of  law  therefrom  :  — 

Declaration.  A.  B.,  by  E.  F.,  his  attorney,  complains 
of  M.  R.,  C.  W.,  J.  T.,  and  S.  M.,  who  have  been  sum- 
moned to  answer  the  said  A.  B.,  for  that  whereas  hereto- 
fore, to  wit,  on day  of ,  the  defendants,  professed 

to  be  possessed  and  owners  of  a  certain  valuable  railroad, 
called  the  "  G.  and  H.  Railroad,"  running  between  the  cities 

of  G.  and  II.  in  the  State  of ,  prepared,  published,  and 

sent  to  the  plaintiff  a  certain  false  and  fraudulent  document 
entitled  "  Prospectus  of  the  G.  and  H.  Raikoad,"  in  which 
the  defendants  falsely  and  fraudulently  represented  and 
asserted  to  the  plaintiff  that  the  said  railroad  was  a  cor- 
poration duly  organized  under  and  by  virtue  of  the  laws 

of  the  State  of ,  that  its  capital  stock  was  the  sum  of 

$5,000,000,  and  that  upwards  of  one-fifth  thereof  had  been 
actually  paid  into  the  treasurj'  of  said  corporation  ;  that 
the  said  railroad  was  in  a  highly  prosperous  condition ; 
that  for  the  past  three  years  it  had  paid  dividends  equal  to 
five  per  centum  of  its  entire  capital  stock  ;  and  that  its  then 
present  earnings  were  larger  than  ever  before  and  rapidlj'' 
increasing ;  and  the  said  defendants  then  requested  the 
plaintiff  to  subscribe  and  pay  for  one  hundred  shares  of 
the  stock  of  said  railroad  at  the  price  of  Si 00  per  share. 
And  the  plaintiff  says  that  all  of  the  aforesaid  representa- 
tions and  assertions  of  the  defendants,  so  made  as  afore- 
said to  the  plaintiff,  were  wholh*  false,  that  no  part  of  the 
said  capital  stock  of  the  said  railroad  corporation  bad  been 
paid,  that  no  dividends  had  ever  been  paid  b}-  the  said  rail- 
road, and  that  it  was  not  in  a  prosperous  condition,  but  on 
the  contrary  was  insolvent,  and  the  stock  thereof  worth- 
less, all  of  which  the  defendants  then  well  knew.  But  the 
plaintiff,  not  knowing  the  said  representations  and  asser- 
tions to  be  false,  but  on  the  contrary  relj'ing  thereon,  and 


336  STUDIES  m  pleading. 

believing  the  same  to  be  true,  then  on  the da}'  of , 

by  means  of  the  premises  purchased  one  hundred  shares  of 
the  stock  of  the  said  corporation  at  the  rate  of  $110  per 
share,  and  then  paid  for  the  same.  And  the  plaintiff  further 
saj's  that  the  defendants,  by  means  of  the  premises,  on  the 
day  and  3'ear  last  aforesaid,  falsely  and  fraudulently  de- 
ceived the  plaintiff  in  the  purchase  of  the  said  shares  of 
stock,  and  thereby  the  same  have  become  and  are  of  no 
value  to  him,  and  the  plaintiff  has  sustained  great  trouble 
and  expense  in  endeavoring  to  dispose  of  the  said  shares 
of  stock.  To  his  damage  in  the  sum  of  $15,000.  Where- 
fore he  brings  his  suit. 

Pleas.  The  defendants,  b}''  L.  M.,  their  attorney,  say 
that  thej'  are  not,  nor  is  either  of  them,  guilty  of  the  said 
alleged  grievances  above  laid  to  their  charge,  or  an}^  part 
thereof.  And  of  this  they  put  themselves  upon  the 
country. 

And  for  a  further  plea  the  defendants  say  that  the  plain- 
tiff did  not  buy  the  said  one  hundred  shares  of  stock,  or 
any  part  thereof,  of  the  defendants,  or  of  any  one  author- 
ized to  represent  the  defendants,  but  wholly  of  third  per- 
sons, strangers,  to  wit,  of  certain  bankers  or  brokers,  in 
the  market,  acting  solel}^  in  their  own  behalf.  And  this 
the  defendants  are  ready  to  verif}^ ;  wherefore  they  pray 
judgment  if  the  plaintiff  ought  to  have  or  maintain  his 
aforesaid  action. 

Replication  to  the  first  plea.  And  the  plaintiff,  as  to 
the  plea  of  the  defendants  first  above  pleaded,  whereof 
they  have  put  themselves  upon  the  countrj',  doth  the  like. 

Demurrer  to  second  plea.  And  the  plaintiff  says  that 
the  said  second  plea  of  the  defendants  is  not  sufficient  in 
law. 

Demurrer  overruled. 


INDEX. 


22 


INDEX. 


[The  italic  lines  indicate  tlie  titles  to  sections.] 


A. 

ABRIDGMENTS, 

■when  infringement  of  copyriglit,  217,  218. 
ABUSE  OF  PROCESS. 

effect  of,  89,  90. 
ACCIDENT, 

(See  Negligence.) 

as  an  excuse  of  a  batteiy,  103,  104. 
ADMINISTRATORS   AND   EXECUTORS, 

liability  for  negligence,  282. 
AGENTS, 

liability  of  to  third  persons,  4,  19,  20,  305,  306. 

liability  to  principals  for  negligence,  277-280. 

dealings  between  agents  and  then-  principals,  287,  288. 
ANBIALS, 

Notice  of  Propensity  to  do  Damage,  248-250. 

wild  animals,  218,  249. 

domestic  animals,  249. 

negligence  of  owner,  249. 

injui-y  from  irritating  animal,  249,  250. 

injured  party  having  notice,  250. 

Escape  of  Animals^  251. 

duty  to  provide  fences,  251. 
ARBITRATORS, 

not  liable  for  negligence,  286,  287. 
ARRESTS, 

(See  False  Imprisonment.) 


340  INDEX. 

ASSAULT   AXD   BATTERY, 

Assault,  98-101. 

what  constitutes,  98,  99. 

intention,  99. 

distance  of  parties  from  each  other,  100. 

damage,  101. 

Battery,  101-105. 

■what  constitutes,  101. 

contact,  101,  102. 

intention,  103. 

negligence,  103. 

accident,  103,  104. 

acts  done  in  sport,  104. 

hostile  acts,  104. 

taking  property,  104,  105. 

Son  Assault  Demesne,  105-108. 
what  amounts  to,  105,  106. 

acts  of  parents  and  schoolmasters,  105. 

self-defence,  106. 

protection  of  property,  106,  107. 

amoimt  of  force  which  may  be  used,  107. 

-^Tongful  entry  upon  another's  land,  107. 

defence  of  family,  108. 

defence  of  master,  108. 

defence  of  servant,  108. 

quelling  a  riot,  108. 

Violence  to  Another^ s  Servants,  10&-112. 

double  right  of  action,  108,  109. 

servant's  right,  109. 

master's  right,  109,  110. 

parent's  right,  110. 

breaches  of  contract,  110,  111. 

death  of  servant  or  wrong-doer,  112. 
ASSIGNEES, 

liability  for  negligence,  282. 
ATTORNEY, 

liability  of  for  false  imprisonment,  127-130. 

for  negligence,  272,  273. 


INDEX.  341 

B. 

BAILOR  AND  BAILEE, 

duties  of  bailee,  265-271,  323,  324. 

(See  Negligexce.) 
BLASTING, 

damage  from,  257. 

c. 

CARRIER, 

identification  of  passenger  with,  316-319. 

genei-al  duties  of  common  carrier,  323,  324. 
CHILDREN, 

negligence  of,  319-322. 
CLERK  OF  COURT, 

improper  writ  issued  by,  124,  125. 
COMMON   CARRIER, 

general  duties  of,  323,  324. 
CONFIDENTIAL   RELATIONS, 

in  actions  for  defamation,  66. 

dealings  between  parties  to,  28,  29,  287,  288. 
CONSPIRACY, 

distinguished  from  malicious  prosecution,  91-93. 

allegation  of  confederation,  92. 

what  amounts  to  conspiracy,  93. 

participation  in,  93-95. 

overt  acts,  93. 

entering  conspiracy  after  its  concoction,  94. 

employing  others,  94. 

no  benefit  derived,  94,  95. 

intention  to  make  profit,  95. 

silent  observation  of,  95. 

Termination  of  Prosecution,  95. 

Want  of  Probable  Cause,  96. 

Malice,  96. 

Damage,  96,  97. 

frustration  of  expected  gratuity,  97. 
CONSTRUCTIVE   NOTICE, 

by  failing  to  inquire,  305,  306. 
CONTRACT, 

(See  Deceit.) 

torts  growing  out  of  breaches  of,  110,  142,  143,  818-315. 


342  INDEX. 

CONTRIBUTORY  NEGLIGENCE, 

what  constitutes,  306-322. 

(5ee  Negligence.) 
CONVERSION, 

trover,  detinue,  and  replevin  explained,  184,  185. 

Possession,  185-189. 

actions  by  lessors,  185. 

right  of  possession,  185,  186. 

special  property,  186. 
jus  tertii,  187. 

possession  wrongfully  taken,  187,  188. 

finding,  188. 

possession  of  servant,  188. 

What  constitutes  Conversion,  189-204. 

sale  without  authority,  190. 

knowledge  of  title,  190,  191. 

liability  of  purchaser,  191. 

effect  of  fraud  in  sale,  191,  192. 

sale  with  right  of  repurchase,  192,  193. 

conditional  sale,  193. 

sale  of  pledge,  193,  194. 

sale  of  qualified  interest,  194,  195. 

sale  of  part,  195,  196. 

permitting  another  to  sell  one's  goods,  196,  197. 

surpassing  authority  to  sell  or  pledge,  197. 

appropriating  article  to  use  not  intended,  197,  198. 

injury  of  chattel,  198. 

mere  assertion  of  dominion,  198,  199. 

intention  to  convert,  199,  200. 

demand  and  refusal,  200-202. 

refusal  on\j  prima  facie  conversion,  202. 

taking  of  goods  by  purchaser  from  vendor  having  no  right  to 
sell,  202,  203. 

tenants  in  common,  203,  204. 
COrYRIGIITS, 

infringements  of,  213-219. 

(See  Patents  and  Copyrights.) 
CORPORATIONS, 

torts  of  directors,  20,  21,  283,  284. 
CUSTOMERS, 

injuries  to  by  condition  of  XDremises,  295-299. 


INDEX.  343 

D. 

DAMAGE, 

in  deceit,  32. 

in  slander,  41,  42. 

in  malicious  prosecution,  87,  88. 

in  conspiracy,  96,  97. 

in  assault  and  battery,  101,  109. 

in  false  imprisonment,  113. 

in  enticement  and  seduction,  139,  140,  143,  144,  152,  153. 

in  trespass,  174. 

in  conversion,  198. 

in  infringements  of  patents  and  copyrights,  205,  213,  214. 

in  violation  of  rights  of  support,  220. 

in  violation  of  water  rights,  230. 

in  nuisance,  237,  244,  245. 

escape  of  animals,  251. 

escape  of  dangerous  elements  or  substances,  252. 

negligence,  260. 
DANGEROUS  THINGS,   ESCAPE  OF, 

protection  against,  252-259. 
DECEIT, 

elements  of  action  for,  10. 

The  Representation^  10-18. 

need  not  be  in  words,  11. 

acts  sufficient,  11. 

nature  of  acts,  11,  12. 

passive  conduct,  12. 

literal  meaning  of  language,  13. 

meaning  as  naturally  understood,  13. 

representation  should  be  certain,  13. 

and  should  justify  a  prudent  man  in  acting,  14. 

statements  of  value  or  opinion,  14,  15. 

statements  concerning  a  man's  pecuniary  condition,  15. 

representation  shoiild  relate  to  present  or  past  facts,  16. 

statement  of  part  of  the  tnith,  16,  17. 

must  be  material,  17. 

and  matter  of  fact,  not  of  law,  17,  18. 

exception,  18. 

DefendanCs  Knowledge  of  Falsity,  18-23. 

honest  statement  of  fact  generally  not  actionable,  18. 


344  INDEX. 

DECEIT,  —  continued. 

exception  as  to  matters  within  the  party's  peculiar  means  of 
knowledge,  19-21. 

representations  by  agents  concerning  their  authority,  19,  20. 

representations  by  directors  of  corporations,  20,  21. 

by  experts,  21. 

statements  not  believed  true,  22,  23. 

Ignorance  of  the  Plaintiff,  23-30. 

knowledge  of  facts  by  plaintiff  fatal  to  action,  23. 

belief  in  defendant's  statements,  23,  24. 

making  investigation,  24. 

when  plaintiff  bound  to  know  the  facts,  24,  25. 

means  of  knowledge  at  hand,  25. 

plaintiff  prevented  from  investigation,  26,  27. 

sales  at  risk  of  purchaser,  28. 

parties  not  on  equal  footing,  28,  29. 

necessity  of  reading  contract,  29,  30. 

Intention  that  Representation  should  be  acted  on,  30-32. 

explanation  of  this  expression,  30,  31. 

reasonable  inference  of  such  intention,  31. 

intent  to  injure,  31,  32. 

Acting  on  Representation,  32,  33. 

damage,  32. 

preventing  one  from  attaching  property,  32,  33. 

when  plaintiff  entitled  to  act  on  representation,  33. 

Slander  of  Title,  33-36. 

elements  of  action  for,  34,  35. 

Trade-marks,  36,  37. 

elements  of  action  for,  37. 
DEMAND   AND  REFUSAL. 

when  necessary  to  constitute  conversion,  200-202. 
DESIGNS. 

infringements  of  patents  for,  209,  210. 
DETENTION, 

of  prisoner  by  officer,  118-120. 
DIGESTS, 

when  infringements  of  copyright,  219,  220. 
DIRECTORS   OF   CORPORATION, 

misrepresentations  by,  20,  21. 

liability  of  for  negligence,  283,  284. 
DURESS,  effect  of,  90. 


INDEX.  345 

E. 

EFFIGY, 

defamation  by,  51. 
ENTICEMENT   AND   SEDUCTION, 

elements  of  action,  139. 

Master  and  Servant  ex  contractu,  140-143. 

procuring  servant  to  leave  his  master,  140. 

service  not  begun,  140. 

notice,  141. 

harboring  servant,  141,  142. 

persons  not  sex-vants,  142,  143. 

breaches  of  contract,  142,  143. 

Master  and  Servant  ex  gratia.,  143,  144. 

the  relation  protected,  143. 

servant  under  obligation  to  another,  143,  144. 

harboring  gratuitous  servant,  144. 

Parent  and  Child,  144-152. 

ground  of  parent's  rights  of  action,  144. 

child  of  age,  144,  146. 

seduction  of  daughter  away  fi-om  home,  145,  146. 

animus  revertendi,  145,  146. 

effect  of  emancipation,  145,  146. 

fraud  on  parent,  146. 

acts  of  service,  146. 

majority  of  daughter,  146,  147. 

pregnancy  and  disease,  147,  148. 

willingiiess  of  daughter,  148. 

mother's  right  of  action,  148-151. 

action  by  daughter,  151. 

consent  or  misconduct  of  parent,  151,  152. 

Guardian  and  Ward,  152,  153. 

suit  by  guardian,  152. 

by  step-father,  152. 

Husband  and  Wife,  153-159. 

gist  of  action  by  husband  or  wife,  153. 

liability  of  parent  for   enticing  daughter  from   husband, 
154,  155. 

harboring  wife,  155,  156. 

seduction  after  wife's  separation,  157. 

infidelity  of  husband,  157,  158. 


346  INDEX. 

ENTICEMENT   AND   SEDUCTION,  —  con^muerf. 

consent  or  misconduct  of  husband,  158. 

condonation,  158,  159. 
ESCAPE  OF  ANIMALS, 

(See  Animals.) 
ESCAPE    OF    DANGEROUS    ELEMENTS    OR    SUB- 
STANCES, 

Nature  of  Protection  required,  252-259. 

reservoirs,  253. 

effect  of  gravitation,  253. 

extraordinary  efforts,  253,  254. 

vis  major  and  act  of  God,  254,  255. 

legislative  authority,  255. 

fall  of  snow  or  ice,  256,  257. 

damage  from  blasting,  257. 

explosion  of  boiler,  257. 

nitro-glycerine,  258. 

insecure  pile  of  lumber,  258. 

insecure  building  or  scaffold,  258. 

undiscoverable  effects,  258,  259. 
EXECUTORS  AND  ADMINISTRATORS, 

liability  for  negligence,  282. 
EXPLOSION, 

damage  from,  257. 

F. 

FALSE  IMPRISONMENT, 

Nature  of  Restraint,  113,  114. 

submission  to  restraint,  114,  115. 

partial  restraint,  115. 

Arrest  with  Warrant,    115-132. 

officer's  justification,  116. 

arrest  of  wrong  person,  116,  117. 

misleading  officer,  117. 

description  in  writ  of  person  intended,  117. 

misnomer,  118. 

acts  in  excess  of  authority,  118. 

oppressive  conduct,  118. 

detention  after  writ  has  expired,  118,  119 

detention  on  other  writs,  119,  120. 


INDEX.  347 

FALSE   EVIPRISONMENT,  —  continued. 

retaking  escaped  prisoner,  120,  121. 

in  civil  cases,  120. 

in  criminal  cases,  121.  - 

invalidity  of  vrrit,  and  effect  on  oflBcer,  121,  122. 

writ  void  or  not,  when,  122,  123. 

officer's  liability  restated,  123. 

liability  of  clerk,  124,  125. 

liability  of  judge,  125-127. 

summary,  127. 

liability  of  plaintiff  and  his  attorney,  127-130. 

distinction  between  civil  and  criminal  cases,  130,  131. 

setting  aside  the  writ,  131,  132. 

malicious  prosecution,  132. 

Arrests  without  Warrant,  132-138. 

when  proper,  132,  133. 

arrest  on  the  spot,  133. 

on  suspicion  of  felony  by  officer,  133,  134. 

reasonable  cause,  135. 

misdemeanor,  136. 

arrest  after  termination  of  breach  of  peace,  136,  137. 

right  of  private  citizen  to  arrest,  137,  138. 
FELLOW-SERVANTS, 

injury  by  negligence  of,  301-305. 

who  are,  304. 
FINDING, 

gives  right  of  possession  against  wrong-doer,  188. 
FRAUD, 

(-See  Deceit.) 

makes  sale  voidable,  191,  192. 

G. 

GUARDIAN  AND  WARD, 
seduction  of  ward,  152,  153. 

H. 

HIGHWAYS, 

obstructing,  245-247. 
HOUSE, 

faU  of,  258. 


348  INDEX. 

HUSBAND  AND  WIFE, 

harboring  wife,  155,  156. 
seduction  or  enticement  of  wife,  153-159. 
infidelity  of  husband,  157,  158. 
condonation  of  offence,  158,  159. 

I. 

IDENTIFICATION, 

of  passenger  with  carrier,  316-319. 
IMPRISONMENT, 

(See  False  Imprisonment.) 
IMPUTABILITY, 

of  negligence  of  parent  or  guardian  to  child,  319-322. 
INNKEEPERS, 

general  duties  of,  263-265,  323,  325. 
INTENT, 

in  assault  and  battery,  99,  103. 

in  conversion  of  goods,  199,  200.  / 

INTERPRETATION  OF  LANGUAGE, 

in  deceit,  13. 

in  cases  of  slander,  39,  40. 

J. 

JUDGE, 

liability  of,  for  false  imprisonment,  125-127. 
not  liable  for  negligence,  286. 

L. 

LANDLORD  AND  TENANT, 

landlord's  right  of  action  for  injury  to  reversion,  165,  185. 
LATERAL  SUPPORT, 

(See  Supports.) 

LIBEL, 

(See  Slander  and  Libel.) 

LICENSES, 

injuries  to,  by  condition  of  premises,  289-295. 
LITERARY  CRITICISM, 
when  libellous,  56,  57. 


INDEX.  349 


M. 

MACHINES, 

infringement  of  patents  of,  206-210. 
MALICE, 

{See  Conspiracy;  ]\Ialicious  Prosecution;   Slander 
AND  Libel.) 
MALICIOUS  PKOSECUTION, 

elements  of  the  action,  70. 

criminal  and  civil  prosecutions,  7L 

Termination  of  the  Prosecution^  72-77. 

acquittal  of  party  prosecuted,  72,  73. 

civil  suit  terminated,  how,  73,  74. 

dismissal  of  action,  74. 

discontinuance,  74. 

criminal  suit  terminated,  how,  74,  75. 

dismissal  by  prosecuting  officer,  74,  75. 

return  of  "  not  found,"  75. 

prosecution  before  magistrate,  75. 

dismissal  of,  75. 

jeopardy  of  prisoner,  75,  76. 

Statute  of  Malicious  Appeals,  76  note,  80. 

summary,  77. 

Want  of  Probable  Cause,  77-86. 

meaning  of  term,  77. 

slight  circumstances  of  suspicion,  77,  78. 

how  probable  cause  to  be  determined,  78,  79. 

judgment  of  conviction,  79,  80. 

belief  in  guilt  of  accused,  80. 

discharge  by  magistrate,  81. 

abandonment  of  prosecution,  82,  83. 

advice  of  lawyer,  83-85. 

evidence  of  malice  not  proof  of  want  of  probable  cause, 
85. 

a  question  of  law,  85,  86. 

Malice,  86,  87. 

evidence  of,  necessaiy,  86,  87. 

Damage,  87,  88. 

when  to  be  proved,  87,  88. 


850  INDEX. 

MALICIOUS  PROSECUTION,  —  continued. 

Analogous  Remedies,  88-90. 

action  for  slander,  88,  89. 

abuse  of  process,  89,  90. 

dui-ess,  90. 
MASTER  AND  SERVANT, 

{See  Enticement  and  Seduction.) 

charges  by  master  affecting  servant's  character,  47,  64,  65. 

defence  of  master,  108. 

defence  of  servant,  108. 

servant's  right  of  action  for  battery,  109. 

master's  right  of  action  for  battery  of  servant,  109,  110. 

death  of  servant,  112. 

servant  has  no  possession,  188. 

servant's  liability  to  master,  280,  281. 

injuries  to  servants  by  condition  of  master's  premises  or 
machinery,  299-305. 

negligence  of  fellow-servant,  301-305. 
MEDICAL  MEN, 

duties  of,  273-275. 
MILLS, 

(^ee  Watercourses.) 
MISDEMEANOR, 

false  charge  of  committing,  43,  44. 

arrests  for,  136. 

N. 
NEGLIGENCE, 

of  owner  of  animals,  249. 

acts  or  omissions  may  constitute,  260. 

standard  of  the  prudent  man,  261,  262. 

province  of  court  and  jury,  262,  263. 

Innkeeper  and  Guest,  263-265. 

innkeeper  an  insurer,  264. 

negligence  of  guest,  264. 

Bailor  and  Bailee,  265-271. 

common  carriers,  265. 

degrees  of  negligence,  265,  266. 

the  true  criterion,  266. 

ordinaiy  care,  266-268. 


INDEX.  351 

NEGLIGEXCE,  —  continued. 

bailment  for  services,  269-271. 

exercise  of  skill,  270. 

inherent  defect  in  goods  to  be  wrought  upon,  270,  271. 

Professional  Services,  271-275. 

extraordinary  skill  not  required,  271. 

duties  of  attorneys,  272,  273. 

duties  of  medical  men,  273-275. 

gratuitous  services  of,  275. 

Telegraph  Companies,  275-277. 

care  in  transmitting  messages,  275,  276. 

conditions  limiting  liability,  276,  277. 

liability  to  him  to  whom  the  message  is  sent,  277. 

Liability  of  Agents,  Servants,  Trustees,  and  Officers  to  their 
Superiors,  277-288. 

agent's  liability  to  principal,  277-280. 

extraordinary  emergencies,  278. 

agents  for  insurance,  279,  280. 

servant's  liability  to  master,  280,  281. 

ratification,  281. 

liability  of  trustee,  281-283. 

executors,  administrators,  and  assignees,  282. 

obtaining  legal  advice,  283. 

investment  of  funds,  283. 

directors  of  corporations,  283,  284. 

public  officers,  284-286. 

officers  of  government,  285. 

officers  of  the  com-ts,  286. 

judges  and  arbitrators,  286,  287. 

dealings  between  agents  and  their  principals,  between  trus- 
tees and  their  cestuis  que  trust  and  the  like,  287,  288. 

Use  of  Premises,  288-305. 

duty  of  occupant  to  trespassers,  288,  289. 

to  bare  licensees,  289-292. 

pits  adjoining  highway,  290-292. 

invited  licensees,  292-295. 

customers,  295-299. 

place  where  injury  happened,  296-298. 

business  of  the  occupant,  298,  299. 

duty  of  master  to  servant,  299-305. 


852  INDEX. 

NEGLIGEjSTCE,  —  continued. 
defective  apparatus,  299. 
personal  negligence  of  master,  301,  303. 
negligence  of  feUow-servant,  301-305. 
who  are  fellow-servants,  304. 
negligence  of  contractor  or  agent,  305. 

Constructive  Notice,  305,  306. 
faUing  to  make  inquiry,  305,  306. 

Contributory  Negligence,  306-322. 

intervening  acts  of  plaintiff,  306-312. 

meaning  of  contributory  negligence,  306-309. 

unlawful  acts  not  per  se  contributory,  308,  309. 

violations  of  Sunday  law,  309,  310. 

party  paralyzed  by  fear,  310,  311. 

contributory  acts  of  thii"d  persons,  312-321. 

knowledge  and  intention  of  defendant,  312-315. 

cases  growing  out  of  breach  of  contract,  313-315. 

identification  of  passenger  with  carrier,  316-319. 

imputability  of  parent's  negligence  to  child,  319-322. 

negligence  of  child,  320,  321. 
NITRO-GLYCERINE, 

damage  from,  258. 
NOTICE, 

of  vicious  propensity  of  animals,  248-250. 

of  danger,  250. 

constructive,  305,  306. 
NUISANCE, 

What  constitutes,  237-247. 

locality,  237. 

"  convenient  "  place,  237,  238. 

slight  detriment  to  property,  239,  240. 

notice  of  nuisance,  240. 

flooding  a  neighbor's  land,  240,  241. 

surface-water,  241. 

water  of  drains  and  ditches,  241. 

milling  operations,  242. 

smells  and  gases,  242,  243. 

disturbance  of  peace  of  mind,  243. 

public  nuisances,  243-247. 

special  damage,  244,  245. 


INDEX.  353 

NUISAISrCE,  —  continued. 

removing  obstructions,  245,  246. 

circuitous  routes  made  necessary  by  obstruction,  246,  247. 

o. 

OFFICERS, 

(See  Assault  and  Battery;  Directors  of  Corporations; 
False  Imprisonment;  Public  Officers.) 

P. 

PARENT   AND   CHILD, 

protection  of  child  from  battery,  110. 
seduction  of  child,  144-152. 

(See  Enticement  and  Seduction.) 
injury  of  child  by  parent's  negligence,  319-322. 
PATENTS   AND   COPYRIGHTS, 
Infringement  of  Patent,  205-213. 
statutory  provisions,  205,  206,  212. 
making,  using,  or  vending,  206. 
machines,  206-210. 
mechanical  equivalents,  207-210. 
better  execution,  207,  208. 
difference  in  substance,  208,  209. 
designs,  209,  210. 
mere  making,  210,  211. 
unauthorized  sale,  211. 
product  of  patented  machine,  211,  212. 
Infringement  of  Copyright,  213-219. 
statutory  pixjvisions,  213,  214. 
what  belongs  to  authors,  214. 
animus  furandi,  214,  215. 
quantity  of  matter  taken,  214-216. 
head-notes  of  law  reports,  215. 
quotation  for  criticism,  216. 
imitations  of  copyrighted  matter,  216,  217. 
common  sources  of  information,  217. 
abridgments,  217,  218. 
digests,  219,  220. 
translations,  219. 
3  23 


354  INDEX. 

PERJURY, 

false  charges  of,  39,  40. 
PHYSICIANS   AND   SURGEONS, 

duties  of,  273-275. 
PLEDGE, 

sale  of,  193,  194. 
POLLUTION   OF    STREAM, 

{See  Watercourse.) 
POSSESSION, 

{See  Conversion;  Trespass.) 
PREMISES, 

use  and  condition  of,  288-305. 

{See  Negligence.) 
PRINCIPAL   AND   AGENT, 

{See  Agents.) 
PRIVILEGED   COMMUNICATIONS, 
in  slander  and  libel,  51-69. 

{See  Slander  and  Libel.) 
PROBABLE   CAUSE, 
want  of,  77-86,  96. 
PROFESSIONAL   SERVICES, 

duties  by  persons  rendering,  271-275. 
{See  Negligence.) 
PROSECUTION, 

termination  of,  72-77,  95. 
PUBLICATION, 

of  slander  or  libel,  40-42. 
PUBLIC   OFFICERS, 
criticism  of,  61,  62. 
liability  for  negligence,  284-286. 

general  duties  of,  323.  i 

PUBLISHERS   OF   BOOKS   AND  PAPERS,  | 

liable  for  defamation,  50. 

R.  I 

RECAPTION,  ^ 

in  civil  cases,  120. 
in  criminal  cases,  121. 
REPORTS, 

copyrights  of,  215. 

of  trials,  when  privileged,  57,  58. 


INDEX.  355 


RESERVOIRS, 

breaking  of,  253. 
RIOT, 

acts  done  in  quelling,  108. 


S. 
SALES, 

(See  Conversion;  Deceit.) 
SCAFFOLDING, 

fall  of,  258. 
SEDUCTION, 

(See  Enticement  and  Seduction.) 
SELF-DEFENCE, 

in  protection  of  person,  106. 

protection  of  property,  106,  107. 

protection  of  family,  108. 
SERVANT, 

(See  Master  and  Servant;  Negligence.) 
SLANDER   AND   LIBEL, 

kinds  of  actionable  defamation,  38,  39. 

Interprelalion  of  Language,  39,  40. 

docti'ine  of  mitiori  sensu,  39. 

perjury,  39,  40. 

natural  meaning,  40. 

Publication  and  Special  Damage,  40-42. 

■what  constitutes  publication,  40. 

meaning  of  "  special  damage,"  41,  42. 

sickness  and  distress  of  mind,  41. 

loss  of  marriage,  42. 

loss  of  consorlium,  42. 

Indictable  Offence  charged,  42-48. 

infamy  of,  42,  43. 

misdemeanor,  43,  44. 

degradation,  the  criterion,  44. 

Contagious  and  disgraceful  Disease  charged,  45. 

charge  of  having  had  same,  45. 

Charge  affecting  Plaintiff  in  his  Occupation,  46-48. 

natural  tendency  of  charge,  46,  47. 

charges  affecting  servants,  47. 


356  INDEX. 

SLANDER   AND   LIBEL,  — continued. 

positions  of  mere  honor,  47,  48. 

party  not  in  exercise  of  his  occupation,  48. 

Charge  tending  to  Disherison,  48. 

bastardy,  48. 

Libel,  49,  50. 

of  wider  extent  than  slander,  49. 

publishers,  editors,  and  booksellers,  50. 

Truth  of  Charge,  50,  51. 

a  good  defence,  51. 

belief  in  truth,  51. 

effigy,  picture,  or  sign,  51. 

Malice  and  Privileged  Communications,  51-69. 

malice  in  law,  51. 

malice  in  fact,  51. 

occasion  of  publication,  52. 

absolute  privilege,  52,  53. 

arguments  of  counsel,  53. 

allegations  in  pleadings,  53,  54. 

affidavits,  54. 

statements  of  witnesses,  jurors,  and  judges,  54,  55. 

proceedings  in  Legislature,  55,  56. 

prima  facie  privilege,  50. 

proceedings  before  church  organizations,  56, 

literary  criticism,  56,  57. 

reports  of  trials,  57,  58. 

headings  to,  57,  58. 

Ex  parte  proceedings,  58. 

iiuxtters  of  public  interest,  58. 

publication  of  legislative  proceedings,  59. 

communications  to  public  authorities,  59,  60. 

persons  acting  for  the  public  weal,  60,  61. 

conduct  of  public  officers,  61,  62. 

use  of  public  prints,  62. 

vindicating  character,  62,  63. 

voluntary  communications,  63-67. 

statements  on  inquiry,  63,  64. 

communications  by  master  concerning  his  servant,  64,  65. 

near  relationship,  65,  66. 


INDEX.  367 

SLANDER   AND  LIBEL,  — continued. 

confidential  relations,  66. 

summary  of  doctrine  of  privileged  communications,  68. 

repeating  defamation,  68,  69. 

defamatory  accusation  prosecuted,  69. 
SLANDER   OF  TITLE, 

in  nature  of  deceit,  33-36. 
SMELLS,    DISAGREEABLE, 

when  nuisance,  242,  243. 
SNOW   AND   ICE, 

injury  by  fall  of  from  building,  256,  257. 
SON  ASSAULT  DEMESNE, 

what  amounts  to,  105,  106. 
SPECIAL  DAMAGE, 

(See  Damage.) 
SPECIAL   PROPERTY, 

(See  Conversion;  Trespass.) 
SPORT, 

acts  done  in,  104. 
SUNDAY   LAW, 

injury  while  in  violation  of,  309,  310. 
SUPPORTS, 

lateral  support,  220-227. 

natural  condition  of  soil,  220,  221. 

superincumbent  weight,  221,  222. 

lateral  support  of  buildings,  222-227. 

depends  on  grant  or  prescription,  222. 

subsidence  not  caused  by  weight  of  buildings,  222,  223. 

lateral  support  of  contiguous  buildings,  223-225. 

depends  on  gTant,  reservation,  or  prescription,  223,  224. 

keeping  house  in  repair,  225. 

party-walls,  225-227. 

Subjacent  Support,  227-229. 

fi-eehold  beneath  surface,  227. 

nature  of  right  of  support,  227,  228. 

buildings,  228. 

support  of  upper  tenements,  229. 
SURFACE   WATER, 

(See  Watercourses.) 
SURGEONS, 

duties  of,  273-275. 


858  INDEX. 


T. 


TELEGRAPH  COMPANIES, 

care  in  transmitting  messages,  275,  276. 

conditions  limiting  liability,  276,  277. 

liability  to  him  to  whom  the  message  is  sent,  277. 
TENANTS, 

(See  Landlord  and  Tenant.) 

in  common,  169,  170,  203,  204. 
TERMINATION  OF   PROSECUTION, 

(See  Malicious  Prosecution.) 
TRADE  MARKS, 

infringements  of,  36,  37. 
TRANSLATION, 

infringement  of  copyright  by,  219. 
TRESPASS, 

general  meaning  of,  160. 

Possession,  160-174. 

necessity  of ,  160,  161. 

without  title,  161,  162. 

several  in  possession  adversely  to  each  other,  162,  163. 

possession  of  personalty,  163. 

special  property,  164. 

possession  wrongfully  obtained,  164. 

injury  to  reversion,  164,  165. 

tenant  at  will,  165. 

waste,  165. 

personalty  in  hands  of  a  bailee  or  lessee,  166. 

property  draws  possession  of  personalty,  166,  167. 

constructive  possession,  167,  168. 

possession  of  cotenants,  169,  170. 

ouster,  169,  170. 

withholding  possession  from  cotenant,  170,  171. 

mesne  profits,  171-174. 

recovery  of  possession,  171,  172. 

successor  by  descent  or  purchase  to  disseisor,  172-174. 

What  constilutes  Trespass,  174-183. 

trespass  to  land,  174. 

entry  justifiable  when,  175-178. 

buying  and  taking  property  from  one  having  no  title,  179. 


INDEX.  359 

TRESPASS,  —  continued. 

trespass  ab  Initio,  179-181. 

definition  of  trespass,  181,  182. 

property  in  animals,  182,  183. 

right  to  kill  another's  animals,  183,  184. 

duty  towards,  181. 
TRESPASS  AB  INITIO, 

meaning  of,  179-181. 
TRESPASSERS, 

duties  of  occux^ants  of  premises  towards,  288,  289. 
TRUSTEES, 

liability  of  for  negligence,  281-283. 

dealings  between  trustees  and  their  cestuis  que  trust,  28,  29, 
287,  288. 

u. 

USUFRUCT, 

(See  Watercourses.) 

V. 

VALUE, 

misrepresentations  of,  14,  15. 
VIS  MAJOR, 

breaking  of  reservoirs  by,  254,  255. 
other  cases  of,  325,  326. 


w. 


WANT   OF   PROBABLE   CAUSE, 

(See  Malicious  Prosecution.) 
WASTE, 

duty  to  refrain  from,  165,  324. 
WATERCOURSES, 

Usufruct  and  Rea.tonahle  Use,  230-234. 
water  in  defined  channels,  230,  231. 
what  amounts  to  reasonable  use,  232. 
water  taken  for  mills,  232,  233. 
riparian  rights  in  the  Pacific  States,  233. 


360  INDEX. 

WATERCOURSES,  —  continued. 

diverting  stream  within  one's  land,  233,  234. 

grant  or  pi-escription,  23i. 

surface  water  running  in  no  defined  channel,  234. 

Suh^surface  Water,  234-236. 

percolating  water,  234. 

underground  stream,  23'5. 

Pollution  of  Stream,  235,  236. 

grant  or  prescription,  235. 

legislative  authority,  236. 

flooding  neighbor's  land,  240,  241. 

surface  water  diverted,  241. 

water  of  drains  and  ditches  diverted,  241. 

milling  operations,  242. 
WRIT, 

{See  False  Imvrisonment.) 


University  Press :  Jolin  Wilson  &  Son,  Cambridge. 


f':^i 


